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9
Court of Criminal Appeal 29 October 1999

R v PPB

[1999] NSWCCA 360

DrugsTheft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL PRACTICE & PROCEDURE DISCOUNT FOR ASSISTANCE

Citation: R v PPB [1999] NSWCCA 360
Court: NSW Court of Criminal Appeal
Date: 29 October 1999
Judges: Simpson J; Kirby J

Background

The applicant pleaded guilty in the District Court to seven armed robberies committed in company over a six-month period in 1997, along with seven counts of stealing a motor vehicle and additional offences on a Form 1. The robberies involved a knife and, for the later offences, a sawn-off .22 rifle. The applicant also used the proceeds of at least one robbery to purchase heroin, reflecting an underlying drug dependency.

Judge Dodd sentenced the applicant to eight years' penal servitude (minimum six years, additional term two years) on each armed robbery count, to be served concurrently. The applicant sought leave to appeal, arguing that the sentence was manifestly excessive when the discount for assistance to police and the question of special circumstances were properly considered.

  • Whether the sentencing judge applied an adequate or properly reasoned discount for the applicant's substantial assistance to police
  • Whether the sentencing judge erred by declining to find special circumstances under s 5(2) of the Sentencing Act 1989 without giving reasons, when relevant material was before him
  • Whether the starting point before any discount was applied was itself too high

Decision

On the assistance discount, the Court noted that Judge Dodd had described the discount as "significant" but did not identify the arithmetic behind it. The Court expressed concern about this approach. Without a clear starting point and an articulated numerical reduction, it is impossible to assess whether the discount was genuinely proportionate to the assistance provided or whether any error occurred.

On special circumstances, the Court found that material capable of supporting such a finding had been placed before the sentencing judge. The applicant faced a difficult transition from custody to community: he would serve his sentence in protection (meaning more restrictive and isolated conditions), he had a significant drug dependency history, and his extensive prior incarceration created a real risk of institutionalisation. The Court drew on the principle confirmed in Regina v Daryl Bruce Lewis that the need to serve a sentence in protective custody can itself constitute special circumstances, warranting a longer additional term to allow for supervised rehabilitation in the community.

The Court found that a minor adjustment to the sentence was warranted. It reduced the total term from eight years to seven years while keeping the additional term at two years, thereby extending the minimum term as a proportion of the whole. The combined effect was a minimum term of five years and an additional term of two years.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; sentence imposed by Judge Dodd quashed
  • In lieu thereof, the applicant sentenced to penal servitude for seven years, comprising a minimum term of five years commencing 9 September 1997 and ending 8 September 2002, and an additional term of two years commencing 9 September 2002 and ending 8 September 2004

Key Takeaways

  • Where a sentencing judge grants a discount for assistance to authorities, the Court of Criminal Appeal indicated it is desirable for the judge to identify the arithmetic: the starting point, the quantum of the discount, and the resulting sentence. A bare description of the discount as "significant" makes appellate review of its adequacy difficult.
  • Under s 5(2) of the Sentencing Act 1989, a sentencing judge who declines to find special circumstances should provide reasons where material capable of supporting such a finding is before the court.
  • The need to serve imprisonment in protective custody can constitute special circumstances, warranting recognition through a longer additional term to facilitate community-based supervision and rehabilitation.
  • A combination of factors including protective custody, drug dependency, and a history of institutionalisation may together support a special circumstances finding, even if no single factor would suffice alone.
  • In allowing the appeal, the Court made only a minor adjustment to the overall sentence, reflecting that the underlying criminality (seven armed robberies in company over six months) warranted substantial punishment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 97(2), 442B
- Criminal Appeal Act 1912 (NSW), s 5DA
- Sentencing Act 1989 (NSW), s 5(2)

Cases
- Regina v Henry (1999) 46 NSWLR 346
- Regina v Daryl Bruce Lewis (1999) 100 A Crim R 361
- Regina v Ellis (1986) 6 NSWLR 603
- Regina v Cartwright (1989) 17 NSWLR 243
- Regina v Gallagher (1991) 23 NSWLR 220
- Regina v Jarrott (CCA, unreported, 27 September 1993)
- Regina v Moran (CCA, unreported, 30 November 1994)
- Regina v Bishell (CCA, unreported, 18 February 1992)
- Regina v Begnell (CCA, unreported, 26 November 1992)
- Regina v Stanford (CCA, unreported, 23 January 1993)
- Regina v Thwaites (CCA, unreported, 6 October 1993)