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Court of Criminal Appeal 14 July 2000

REGINA v CEISSMAN

[2000] NSWCCA 274

Assault & violenceTheft & propertyFirearms & weapons
SENTENCE APPEAL INTERSTATE SENTENCE HOW TO ACCOUNT FOR

Citation: Regina v Ceissman [2000] NSWCCA 274
Court: NSW Court of Criminal Appeal
Date: 14 July 2000
Judge(s): Adams J, Bell J

Background

The applicant pleaded guilty in the NSW District Court to four counts of armed robbery and three counts of stealing a motor vehicle, all committed in early 1995. The offences involved a series of bank and club robberies carried out with co-offenders using a shortened firearm, which was discharged on one occasion. Sentencing in NSW did not occur until October 1999.

The delay arose partly because, after committing the NSW offences, the applicant relocated to Queensland and was arrested there in September 1995 for separate robbery and vehicle theft offences. He was sentenced in Queensland in November 1996 to a total of seven years imprisonment with a two-year non-parole period. He was transferred to NSW custody in September 1997, after which he served out a pre-existing NSW parole period that expired in December 1997.

The central difficulty at sentencing was how the NSW District Court should account for the Queensland sentence when fixing the appropriate penalty for the NSW offences, given that all the offending had occurred within a short period and would likely have been dealt with together had there been no interstate jurisdictional divide.

  • Whether the sentencing judge correctly applied the principle from The Queen v Todd (1982) and Mill v The Queen (1988), which governs how a court should sentence an offender who has already served a sentence in another jurisdiction for offences that, absent jurisdictional constraints, would have been dealt with at the same time.
  • Whether the resulting head sentence was manifestly excessive when compared to sentences imposed on comparable offenders, including a co-offender named Quinlan.
  • Whether the sentencing judge gave adequate weight to the applicant's subjective circumstances, including a deprived childhood, early drug use, and signs of rehabilitation.

Decision

On the first ground, Adams J found that the sentencing judge had substantially complied with the Todd/Mill principle, even if his Honour had not articulated the approach in strict technical terms. The sentencing judge had explicitly stated that he took the Queensland sentence into account and adjusted the NSW sentence downward to reflect the circumstance that, had jurisdictional barriers not existed, all sentences would have been imposed together. Adams J was satisfied this captured the substance of what the principle requires.

On the parity ground, the applicant argued his sentence was disproportionate relative to that received by Quinlan, a co-offender. Adams J acknowledged the comparison but found material differences between the two offenders, including Quinlan's more extensive criminal history and older age at the time of the offences. The matter could not be treated as a straightforward arithmetic exercise, and the disparity did not justify intervention.

On the third ground, Adams J accepted that the applicant's deprived upbringing and early exposure to drug use were significant background factors, and that he had shown genuine progress during imprisonment. However, Adams J was satisfied that the sentencing judge had taken all relevant subjective material into account. The Court emphasised that its appellate role is not to re-exercise the sentencing discretion but to identify legal or factual error, or a sentence so manifestly excessive as to imply such error. No such error was found.

Bell J agreed with Adams J in a brief concurring judgment.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Todd/Mill principle requires a sentencing court dealing with an offender who has served a sentence in another jurisdiction to consider what effective head sentence would have been imposed had all the offending been dealt with together in the one jurisdiction, adjusting both the head sentence and the non-parole period accordingly, not the non-parole period alone.
  • A sentencing judge who departs from strict technical compliance with Todd/Mill does not necessarily fall into error if the substance of the adjustment is made and reflected in the overall sentence imposed.
  • Where an applicant seeks parity with a co-offender's sentence, differences in criminal history, age, and individual circumstances can justify what may appear on the surface to be a disparity in outcomes.
  • Positive subjective factors, including rehabilitation and a difficult personal history, are relevant to sentencing but do not automatically result in a reduction where the sentencing judge has demonstrably considered them.
  • In dismissing the appeal, the Court of Criminal Appeal reiterated that it does not sit as a court of first instance on sentence and will intervene only where legal or factual error is established, or the sentence falls outside any appropriate range.

Legislation and Cases Referenced

Cases:
- The Queen v Todd (1982) NSWLR 517
- Mill v The Queen (1988) 166 CLR 59

Legislation: No specific legislation was cited in the provided judgment text.