Citation: Regina v Kitiona [1999] NSWCCA 393
Court: NSW Court of Criminal Appeal
Date: 6 December 1999
Judge(s): Sperling J; James J
Background
The applicant, a 20-year-old man, pleaded guilty to robbery in company following an incident in St Leonards in September 1997. He and an associate accosted two women in their early 50s who had just finished work and were walking to their cars. One victim had her bag taken without significant struggle; the other was pulled to the ground, dragged, and had her bag taken while she screamed for help.
The applicant had a prior record of similar offending. In 1995, he had been sentenced for aggravated robbery and assault occasioning actual bodily harm. At the time of the present offence, he was still subject to a recognisance from that earlier matter and had been granted bail for a receiving charge only two days before.
Gibson DCJ in the District Court sentenced the applicant to a total of four and a half years' penal servitude, comprising a minimum term of three and a half years and an additional term of twelve months. The applicant sought leave to appeal on the grounds that the sentence was manifestly excessive and that the sentencing judge had erred in failing to find special circumstances.
Legal Issues
- Whether the total sentence of four and a half years for robbery in company was manifestly excessive in light of the applicant's subjective circumstances
- Whether the sentencing judge erred by failing to find "special circumstances" (a finding that would have allowed a longer additional term for rehabilitation at the expense of the minimum term)
Decision
On the question of manifest excess, the Court considered the subjective features raised on the applicant's behalf: his youth, guilty plea, lack of education, unemployment, expression of remorse, family support, absence of drug use, and a psychological report indicating emotional immaturity and delayed social development. The sentencing judge had also heard the applicant's claim that he was pressured into the offence, though that claim was rejected given the applicant's refusal to identify his co-offender.
The Court weighed those matters against the aggravating features: the offending involved two separate victims, both co-offenders were complicit in both robberies, one victim was physically dragged to the ground, the offence was premeditated, and the applicant committed it while subject to a recognisance and just days after being granted bail. The Court referred to the guideline judgment in Henry (1999) 46 NSWLR 346, which sets a general range of four to five years for armed robbery under s 97 involving certain characteristics. The Court found the present offence was distinguishable and not out of step with that range, describing the sentence as heavy but within the proper exercise of judicial discretion.
On special circumstances, the Court noted that the minimum term actually exceeded the statutory ratio by approximately six weeks, which, while unusual, was not unlawful. The Court found no obligation on the sentencing judge to find special circumstances, and in particular no requirement to extend the additional term for supervised rehabilitation. Although the Court acknowledged the applicant had been a cooperative prisoner making genuine efforts to rehabilitate, it found no error in the sentence warranting interference.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Robbery in company involving two victims, premeditation, physical violence to a victim, and offending while subject to a recognisance and on bail represents a seriously aggravated set of circumstances that can justify a sentence at the higher end of the applicable range.
- The Henry guideline range of four to five years for s 97 armed robbery offences applies to cases with specific characteristics; where an offence involves additional aggravating features, a sentence within or near that range may still be appropriate and not manifestly excessive.
- No error was established in the sentencing judge's refusal to find special circumstances merely because the applicant had prospects of rehabilitation; the existence of a rehabilitative need does not automatically compel a longer additional term.
- A minimum term marginally exceeding the statutory ratio is unusual but not unlawful, and does not of itself constitute appellable error.
- In dismissing the appeal, the Court of Criminal Appeal reaffirmed that bag snatching committed in company is a serious offence warranting sentences that reflect general deterrence, particularly where vulnerable victims in public spaces are targeted.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 94 and 97
Cases:
- Hall (NSW CCA, 28 September 1995, unreported)
- Henry (1999) 46 NSWLR 346