Citation: Regina v Farra [1999] NSWCCA 283
Court: NSW Court of Criminal Appeal
Date: 15 September 1999
Judge(s): Sully J; Simpson J
Background
The applicant was sentenced in the Liverpool District Court by O'Reilly DCJ on 21 October 1998 following charges of five separate offences committed across a ten-day period in February 1998. Three charges involved robbery while armed with an offensive weapon (a knife), one charge involved unarmed robbery, and one charge involved kidnapping arising from the same incident as the unarmed robbery. All victims were young people going about their ordinary affairs.
The sentencing judge imposed a principal sentence of five years' penal servitude on one count of armed robbery, with a minimum term of three years and an additional term of two years. Fixed terms of three years were imposed concurrently on each remaining count.
The applicant sought leave to appeal to the Court of Criminal Appeal, arguing that the sentences were manifestly excessive. By the time the matter reached the Court of Criminal Appeal, the argument had narrowed: the aggregate sentence of five years was conceded to be unassailable, but the apportionment between the minimum and additional terms was challenged on the basis that the sentencing judge had mishandled the "special circumstances" finding.
Legal Issues
- Whether the sentencing judge erred in his approach to finding "special circumstances" under s 5(2) of the Sentencing Act in determining the apportionment of the sentence between the minimum and additional terms.
- Specifically, whether the sentencing judge gave adequate weight to evidence from the applicant's father about his longstanding efforts to rehabilitate his son, and his preparedness to assist further.
Decision
The Court granted leave to appeal but dismissed the appeal. Sully J emphasised that the central question on any sentence appeal is whether demonstrable error has been established in the primary judge's reasoning, not whether the appellate judges would themselves have reached the same result.
On the question of the father's evidence, the Court accepted that it carried real weight. The sentencing judge had accepted the father as a credible and substantial witness, and his evidence described years of sustained effort to steer the applicant away from a criminal path. However, Sully J found that a fair reading of the remarks on sentence showed the judge took that evidence into account while remaining appropriately sceptical, given the applicant's past history, about whether further paternal support would in fact achieve rehabilitation.
The Court found that the sentencing judge faced a difficult balancing exercise. The offences were extremely serious, and members of the community have a right, not merely a privilege, to go about their affairs without being detained and robbed at knifepoint. Once the aggregate sentence was accepted as unimpeachable, no basis remained to conclude the apportionment between minimum and additional terms was in error.
Simpson J agreed with Sully J's reasons and conclusions.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that the test on a sentence appeal is whether error by the primary sentencing judge has been demonstrated, not whether the appellate court would have reached a different result.
- A sentencing judge who expressly finds "special circumstances" under s 5(2) of the Sentencing Act does not necessarily err simply by applying a less generous apportionment than an applicant sought.
- Where the aggregate sentence is itself conceded to be within the proper range, challenging only the apportionment between minimum and additional terms faces a high bar: the applicant must still establish specific error in the judge's reasoning.
- Accepting a witness as credible does not preclude a sentencing judge from remaining sceptical about the ultimate effectiveness of the conduct that witness described, particularly where the offender's prior history warrants caution.
- Upholding the sentence, the Court reiterated that individuals hold a right (not a privilege) to go about their lawful affairs free from robbery or detention, a principle that properly informed the judge's assessment of the seriousness of the offences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 90A (kidnapping), 94 (robbery), 97(1) (robbery armed with an offensive weapon)
- Sentencing Act (NSW), s 5(2) (special circumstances and apportionment of minimum and additional terms)
Cases cited: None cited in the judgment.