Citation: Elleissey v R [1999] NSWCCA 299
Court: New South Wales Court of Criminal Appeal
Date: 15 September 1999
Judge(s): Wood CJ at CL; Simpson J
Background
The appellant was convicted of armed robbery contrary to s 97(1) of the Crimes Act 1900, following an incident in which he robbed a newsagency of $600 by threatening a staff member with a knife. The offence was committed in connection with the appellant's heroin addiction. He pleaded guilty on 19 August 1998 and was sentenced on 23 October 1998.
At sentencing, the District Court imposed a minimum term of 18 months' penal servitude and an additional term of 2 years. That sentence was ordered to commence at the expiration of an existing minimum term of 12 months for two counts of break and enter with intent to commit a felony, and a fixed term of 6 months for possessing an offensive implement in a public place.
The appellant had been in custody since 7 January 1998, but throughout that period he was serving the sentences for those other matters. He appealed on the ground that he should have received credit for at least some of the pre-sentence time spent in custody.
Legal Issues
- Whether the sentencing appeal raised any question of principle warranting the Court's intervention
- Whether the sentence of 18 months minimum and 2 years additional was manifestly excessive for armed robbery
- Whether the sentencing judge erred in failing to give the appellant credit for time spent in custody, where that time was entirely consumed by sentences for other offences
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no question of principle and no error in the sentence imposed.
On the custody credit point, the Court noted that when the appellant was sentenced, the existing sentences he was serving had less than one month left to run. It was considered entirely appropriate for the sentencing judge to accumulate the armed robbery sentence upon those existing sentences, and to extend the additional term to account for the appellant's need for a lengthy period of supervised rehabilitation and the fact of accumulation.
The Court also observed that the appellant had an extensive criminal record dating back to 1994, including multiple offences of stealing, assault, resisting police, break and enter, and drug-related offences. Even accounting for the guilty plea, the Court found the sentence was in fact lenient when measured against the guideline judgment in Henry (1999) NSW CCA 107 and the aggravating feature of knife use addressed in Wright (1997) 93 A Crim R 48.
No error of principle was identified, and the Court concluded the sentence could not on any view be regarded as manifestly excessive.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Time spent in custody while serving sentences for unrelated offences does not automatically entitle an offender to credit against a new sentence imposed for a separate matter.
- Accumulation of a fresh sentence upon existing sentences is appropriate where the circumstances warrant it, including where the prior sentences are nearly expired.
- A lengthy additional term may properly be imposed to reflect both the fact of accumulation and the offender's need for extended supervised rehabilitation.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the guideline judgment in Henry remains relevant to assessing the appropriateness of armed robbery sentences, with the use of a weapon as an aggravating factor.
- No error of principle is established merely because an appellant has spent time in custody prior to sentence, where that custody was referable entirely to other offences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (armed robbery, maximum penalty 20 years)
- Criminal Appeal Act 1912 (NSW), s 21A (short-form reasons)
Cases:
- R v Henry (1999) NSW CCA 107 (guideline judgment on armed robbery sentencing)
- R v Wright (1997) 93 A Crim R 48 (aggravating effect of weapon use in robbery)