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Court of Criminal Appeal 17 September 1999

R v Uasi

[1999] NSWCCA 306

Theft & property
CRIMINAL LAW SENTENCING AGGRAVATED ROBBERY WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Uasi v R [1999] NSWCCA 306
Court: NSW Court of Criminal Appeal
Date: 17 September 1999
Judges: Sully J; Barr J

Background

The appellant pleaded guilty in the District Court to four serious offences: robbery in company of a bank, attempted aggravated robbery with wounding at a second bank, and two further armed robberies, all committed in 1997. He also asked the sentencing judge to take into account sixteen additional offences under s 21 of the Criminal Procedure Act, comprising fourteen further robberies in company and two robberies committed alone. In total, the sentencing judge dealt with twenty offences spanning February to September 1997.

The appellant was 17 to 18 years old at the time of the offences. He was addicted to heroin and committed the robberies to fund that addiction. The total sum stolen across all twenty offences was $238,897.09. The offences followed a recognisable pattern: in most attacks on banks, co-offenders staged a fight as a diversion while others vaulted the counter. The appellant was armed with knives, a meat cleaver, or a screwdriver on several occasions, and stabbed a bank manager twice during one incident.

The sentencing judge imposed twelve years' penal servitude for the most serious count (attempted aggravated robbery with wounding), structured as an eight-year minimum term and a four-year additional term. Fixed terms of eight years were imposed on the remaining counts, to be served concurrently. The appellant sought leave to appeal on the basis that the total sentence was manifestly excessive.

  • Whether the sentencing judge mishandled the psychological evidence concerning possible brain damage and its bearing on the sentence.
  • Whether the sentencing judge failed to adequately consider other mitigating factors, including the appellant's dysfunctional background, youth, and prospects of rehabilitation.
  • Whether the principle of parity required the Court to take into account the lesser sentence received by a co-offender (Smith) when assessing the appellant's sentence.
  • Whether the total effective sentence was outside the proper range of the sentencing discretion, rendering it manifestly excessive.

Decision

The Court of Criminal Appeal examined the appellant's complaint about the sentencing judge's treatment of the psychologist's report. The psychologist (Mr Fathers) had performed a test suggesting a possibility of brain damage but did not conclude that the appellant was in fact suffering its effects. The Court found that the sentencing judge's characterisation of the report was broadly accurate: the psychologist's most the evidence supported was the possibility of brain damage, not its presence, and it was not open to the sentencing judge on that material to find brain damage established.

The Court also found that the sentencing judge had correctly understood the practical reality: whatever the cause of the appellant's intellectual deficits and social disabilities, those characteristics were accounted for in the sentence. The failure to refer expressly to every aspect of the psychologist's report, including family background and developmental difficulties, did not constitute a material error.

On the question of parity with the co-offender Smith, the Court declined to treat Smith's sentence as a relevant comparator. Smith was sentenced by a different judge on a different factual basis, for only nine offences rather than twenty. The superficial similarity in the headline figure of twelve years masked fundamentally different circumstances, and the Court found the parity principle had no application.

The Court granted leave to appeal, acknowledging the seriousness of the offences warranted that step, but dismissed the appeal. It concluded that the gravity of twenty offences, including a wounding, committed over seven months by a young repeat offender in a deliberate and organised manner, placed the sentence well within the permissible range.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge is not required to address every aspect of a psychological report, provided the judge correctly understands the substance of the evidence and its practical significance to the offender's circumstances.
  • The parity principle does not automatically apply where a co-offender is sentenced by a different court on a different factual basis, even if the headline sentence appears similar or lesser.
  • A finding that brain damage is merely "possible" on the evidence is materially different from a finding that it exists; a sentencing judge cannot be criticised for declining to treat a possibility as an established mitigating fact.
  • Organised, pattern-based offending across twenty robberies over seven months, involving weapons and physical violence, placed the conduct at a level of seriousness that supported a twelve-year sentence with an eight-year minimum term, despite the appellant's youth and heroin addiction.
  • Under s 5(3) of the Criminal Appeal Act, the Court of Criminal Appeal will substitute a lesser sentence only where it is positively satisfied a lesser sentence is warranted; the threshold was not met on the facts of this case.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act (NSW), s 21 (taking further offences into account on sentencing)
- Criminal Appeal Act (NSW), s 5(3) (power to substitute a lesser sentence)

Cases cited: None cited in the judgment text.