Citation: R v London [2000] NSWCCA 165
Court: NSW Court of Criminal Appeal
Date: 5 May 2000
Judge(s): Hulme J; Carruthers AJ
Background
The appellant pleaded guilty in the District Court to two counts of assault with intent to rob while armed with a firearm, with wounding, contrary to section 98 of the Crimes Act. The first offence occurred at a second-hand dealer's premises in Glebe, where the appellant shot the shopkeeper in the leg after demanding money. The second occurred at the Sefton Hotel, where the appellant held up staff at gunpoint and shot the day manager in the arm while he was opening the safe.
Judge English sentenced the appellant to a minimum term of 12 years and an additional term of four years on the first count, and a concurrent fixed term of eight years on the second count, both commencing 11 November 1996. This produced a total head sentence of 16 years. The sentencing judge also took into account more than 20 further matters on two Form 1 documents, including five counts of armed robbery and multiple firearms offences.
The appellant sought leave to appeal against the sentences imposed, contending they were excessive and that the sentencing judge had misapplied certain sentencing principles.
Legal Issues
- Whether the sentencing judge gave insufficient weight to the appellant's subjective circumstances, including his troubled background, substance abuse history, and psychological condition
- Whether the sentencing judge gave inappropriate weight to the appellant's criminal history
- Whether the sentencing judge erred by failing to give reasons for imposing a fixed term on the second count
- Whether the sentences were manifestly excessive in all the circumstances
Decision
The Court of Criminal Appeal rejected all four grounds and refused leave to appeal, describing the application as "hopeless." Hulme J emphasised that subjective circumstances cannot be allowed to inappropriately outweigh the objective gravity of the offences. Despite the psychological report tendered on the appellant's behalf, which documented a difficult background, substance abuse, and signs of remorse and insight, the Court found this material did not alter the sentencing outcome.
Referring to Regina v Henry (1999) 46 NSWLR 346, Hulme J noted that sentences of four to five years were considered appropriate for armed robberies far less serious than those committed by the appellant. The combination of the offences charged, the Form 1 matters, and the appellant's prior record justified the overall sentence imposed. The Court accepted the sentencing judge's observation that the community has a legitimate expectation that repeat offenders be dealt with severely, and that deterrence was a significant sentencing consideration here.
Hulme J raised one technical concern arising from Regina v Pearce: in fixing the sentence for the first count, the sentencing judge ought not to have taken into account the criminality inherent in the second charged offence (as distinct from the Form 1 matters). However, because the second count was served concurrently, the appellant suffered no practical disadvantage, and Hulme J confirmed he would not have imposed any lesser sentence even if the approach required by Pearce had been applied from the outset.
Orders Made
- Leave to appeal refused
Key Takeaways
- Subjective circumstances, including a difficult background, substance dependency, and post-offence insight, cannot override the objective seriousness of violent armed robbery offences involving firearms and wounding.
- Under section 98 of the Crimes Act, each offence of assault with intent to rob while armed and with wounding carries a maximum of 25 years imprisonment, reflecting Parliament's assessment of the gravity of such conduct.
- The Court of Criminal Appeal confirmed, consistent with Regina v Morgan (1993) 70 A Crim R 368, that appropriate weight must be given to offences included on a Form 1 when assessing total criminality at sentence.
- A technical sentencing error identified under Regina v Pearce, where the sentencing judge had impermissibly factored the second charged offence into fixing the first sentence, did not result in any reduction because the sentences ran concurrently and no disadvantage arose.
- In dismissing the application, the Court endorsed the principle that courts must sentence repeat violent offenders in a manner that reflects both specific and general deterrence, particularly where earlier leniency has not influenced behaviour.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 98 (assault with intent to rob while armed, with wounding)
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
- Regina v Morgan (1993) 70 A Crim R 368
- Regina v Henry (1999) 46 NSWLR 346
- Regina v Pearce (High Court of Australia, citation not recorded in judgment text)