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Court of Criminal Appeal 21 February 2000

R v Locke

[2000] NSWCCA 19

Assault & violenceTheft & property
CRIMINAL LAW AND PROCEDURE SENTENCE NO SPECIAL POINT OF PRINCIPLE

Citation: R v Locke [2000] NSWCCA 19
Court: NSW Court of Criminal Appeal
Date: 21 February 2000
Judge(s): Grove J; Greg James J

Background

The appellant, a 39-year-old Aboriginal man, pleaded guilty in the Newcastle District Court to aggravated robbery. The offence arose after the victim offered the appellant and his 11-year-old nephew a lift late at night, then took them to an unoccupied house where the appellant understood the victim to be making sexually predatory overtures toward the boy. The appellant, who had consumed alcohol that evening, attacked the victim and then robbed him, taking the victim's car to remove his nephew from what he perceived as immediate danger.

The sentencing judge imposed a total sentence of three and a half years penal servitude, divided into a minimum term of two years and an additional term of eighteen months. Three matters on a Form 1 schedule (a document listing related offences taken into account at sentencing without separate conviction) were also considered, including drink-driving, driving while cancelled, and failing to appear at court.

The appellant sought leave to appeal on the ground that the sentence was manifestly excessive, arguing that the sentencing judge had not adequately accounted for cultural factors relating to his Aboriginal background.

  • Whether the sentencing judge gave adequate weight to the appellant's Aboriginal background and, in particular, the cultural significance of kinship obligations toward the nephew under the principles in R v Fernando
  • Whether pre-sentence custody had been properly and transparently reflected in the sentence
  • Whether the total sentence was manifestly excessive in the circumstances

Decision

The Court of Criminal Appeal found that while the sentencing judge had acknowledged the appellant's Aboriginality and the Fernando principles, he had not fully appreciated that Aboriginal kinship ties would culturally compel the appellant to defend his nephew in the circumstances that arose. The Court accepted the submission by senior counsel for the appellant that this omission had material significance and warranted intervention.

The Court also noted a concern about the treatment of pre-sentence custody. Although the sentencing judge indicated he had taken that period into account, the Court considered it desirable that the allowance be made patent, and the Crown conceded that backdating the sentence to the first day of actual custody would have been appropriate.

Grove J considered a total sentence of less than three years appropriate in light of all circumstances, including the highly unusual provocation presented by the perceived threat to the child. A shorter total sentence brought the matter within the Court's power to set parole conditions directly, rather than leaving release to the discretion of the Parole Board. The Court identified this as particularly desirable given the appellant's alcohol-related needs, enabling a parole condition requiring attendance at rehabilitation programs.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • District Court sentence quashed
  • Appellant resentenced to a total of two and a half years imprisonment (taking into account Form 1 offences)
  • Special circumstances found; minimum term of 18 months dating from 2 March 1999, expiring 1 September 2000
  • Additional term of 12 months dating from 2 September 2000
  • Appellant to be released to parole on 1 September 2000, subject to supervision by the Probation and Parole Service and compliance with any directions regarding alcohol rehabilitation courses

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Fernando principles require sentencing courts to engage specifically with how Aboriginal cultural norms, including kinship obligations, may bear on an offender's conduct, not merely to acknowledge Aboriginality in a general way.
  • Where a sentencing judge's recognition of cultural factors is insufficient in its specificity, that omission can constitute a ground for appellate intervention and resentencing.
  • Pre-sentence custody should be reflected in a sentence in a way that is transparent and apparent on the face of the orders, not merely referenced as a factor taken into account.
  • A total sentence of less than three years, in a case under the Sentencing Act, transferred the parole decision from the Parole Board to the Court itself, allowing the Court to impose conditions directed at rehabilitation.
  • The unusual facts, particularly the perceived threat of sexual predation against a child in the appellant's care, were treated as highly material to the objective gravity of the offending and to the appropriateness of a reduced sentence.

Legislation and Cases Referenced

Cases:
- R v Fernando (1992) 76 A Crim R 58

Legislation:
- Sentencing Act (NSW) (specific provision not cited in the judgment)
- Justices Act (NSW), s 51A (committal for sentence)