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Court of Criminal Appeal 24 August 2000

Regina v D B K Ridgeway

[2000] NSWCCA 286

Assault & violenceTheft & property
CRIMINAL PRACTICE & PROCEDURE SENTENCING GUIDELINES ARMED ROBBERY PAROLE PERIOD

Citation: Regina v D B K Ridgeway [2000] NSWCCA 286
Court: NSW Court of Criminal Appeal
Date: 24 August 2000
Judges: Beazley JA, Grove J, Kirby J

Background

The respondent pleaded guilty in the District Court to two counts of robbery whilst armed with an offensive weapon, arising from two separate incidents in May 1999. Both robberies were committed in company, involved demands made at close range from female attendants at a video store and a service station, and were captured on surveillance film. A syringe was used as a weapon in the first robbery; a machete was present in the second. Ten further offences were placed before the sentencing judge on a Form 1 (a document listing additional charges taken into account at sentencing without formal conviction).

Judge Backhouse DCJ sentenced the respondent to three years imprisonment on each count, to be served concurrently, with a minimum term of two years and an additional term of one year. Her Honour found special circumstances, reducing the non-parole period below the statutory norm to allow for an extended period on parole.

The Crown appealed under s 5D of the Criminal Appeal Act 1912, arguing the sentences were manifestly inadequate in light of established sentencing guidelines for armed robbery.

  • Whether the total sentence of three years was manifestly inadequate when measured against the sentencing guidelines for armed robbery established in R v Henry (1999) 46 NSWLR 346
  • Whether a sentencing judge who departs from sentencing guidelines must state reasons for doing so
  • Whether the principle of double jeopardy on a Crown appeal justified leaving the non-parole period undisturbed even where resentencing was required

Decision

Kirby J (with Beazley JA agreeing) found that the sentence of three years fell below the range indicated by the Henry guidelines for armed robbery, particularly given the aggravating features present: offences committed in company, a vulnerable victim, some degree of planning, and significant impact on the victims. Even accounting for the respondent's strong subjective case, which included youth, a difficult upbringing, genuine remorse, and good prospects for rehabilitation, a sentence of less than four years did not adequately reflect the totality of the criminality involved.

Kirby J also confirmed the principle that where a sentencing judge departs from established guidelines, the reasons for doing so must be stated expressly and not left to inference.

On the question of the non-parole period, Kirby J accepted that special circumstances existed, pointing to the respondent's youth, his first period in custody, and rehabilitation prospects. Were he sentencing the respondent for the first time, he would have set a non-parole period of two and a half years. However, applying the principle of double jeopardy that attaches to Crown appeals, he concluded the non-parole period fixed by her Honour should remain undisturbed at two years.

Grove J disagreed on this last point. In his view, allowing the appeal and finding the sentences manifestly inadequate was logically inconsistent with leaving the non-parole period unchanged. He would have set the non-parole period at two and a half years.

Orders Made

The Court was not unanimous on the precise orders, but the following reflect the outcome:

  • Crown appeal allowed
  • Sentences imposed in the District Court quashed
  • Per Kirby J (majority on this point): Respondent sentenced to four years imprisonment commencing 1 June 1999, with a non-parole period of two years, making the respondent eligible for parole on 1 June 2001; sentences to be served concurrently
  • Per Grove J (dissenting on non-parole period): Would have imposed a non-parole period of two and a half years, with earliest parole eligibility of 30 November 2001

Key Takeaways

  • The Court of Criminal Appeal confirmed that the R v Henry guidelines for armed robbery set a starting range from which sentencing courts must not depart without giving express reasons; leaving the basis for departure to inference is insufficient.
  • A sentence of three years for two armed robberies involving weapons, offending in company, vulnerable victims, and ongoing psychological harm to those victims fell below the acceptable range, even on a strong subjective case.
  • Double jeopardy remains a live consideration on Crown appeals: Kirby J declined to increase the non-parole period beyond what the District Court had fixed, treating the respondent's exposure to a second sentencing exercise as a factor warranting restraint.
  • Grove J's dissent illustrates a competing view: finding a sentence manifestly inadequate while leaving the minimum custodial period unchanged may be internally inconsistent, and the non-parole period ought to reflect the same corrective upward adjustment as the head sentence.
  • Strong subjective features, including youth, difficult personal history, genuine remorse, and rehabilitation prospects, can justify a finding of special circumstances reducing the non-parole period, but they do not override the requirement that the total sentence reflect the objective seriousness of the offending.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), ss 97(1), 114, 188, 195
- Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases:
- R v Henry (1999) 46 NSWLR 346
- R v Micallef (CCA, unreported, 3 November 1997)
- R v Rushby (1977) 1 NSWLR 594
- The Queen v Yenice (1994) 72 A Crim R 234
- R v Lattouf (CCA, unreported, 12 December 1996)
- R v Govinden [1999] NSWCCA 118
- R v Baker [2000] NSWCCA 85
- Griffiths v The Queen (1977) 137 CLR 293
- Everett v The Queen (1994) 181 CLR 295