AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 23 August 2000

R v Shaw

[2000] NSWCCA 326

Assault & violenceTheft & propertyPublic order & justice offences

Citation: Shaw v R [2000] NSWCCA 326
Court: New South Wales Court of Criminal Appeal
Date: 23 August 2000
Judge(s): Heydon JA, Smart AJ, Ireland AJ

Background

The applicant sought leave to appeal against sentences imposed by Backhouse DCJ in the District Court on 13 April 1999. He had pleaded guilty to two offences: an armed robbery on 29 January 1998 (in which he threatened a victim with a syringe he claimed was filled with blood) and a breaking and entering at a college on 4 April 1997. A further offence of attempted robbery with a screwdriver was taken into account on sentencing.

The sentencing judge imposed concurrent head sentences of six years' penal servitude with a minimum term of three years on both charges. At the time of the robbery and attempted robbery, the applicant was on parole, having been released from prison only one week earlier. He had an extensive criminal history, having been sentenced on fifteen prior occasions covering fifty-three charges.

The applicant appeared in person on the appeal and relied on two written arguments. The first challenged the robbery sentence by reference to a guideline judgment handed down after he was sentenced. The second challenged the sentence for breaking and entering.

  • Whether the armed robbery sentence was excessive in light of the guideline in R v Henry (1999), which suggested a sentencing range of four to five years for a defined category of armed robbery
  • Whether the sentence for breaking and entering was within the proper range of the sentencing discretion, having regard to the circumstances of the offence and the applicant's criminal history

Decision

On the robbery sentence, the Court considered the R v Henry guideline, noting it was handed down after the applicant was sentenced. The Court accepted the Crown's concession that the offence fell "broadly" within the Henry category, but emphasised that guideline judgments are not binding rules. A failure to sentence within a guideline range is not itself a ground of appeal. The guideline operated here as a tool for assessing whether any appellable error occurred in the sentencing discretion.

The Court found that strong aggravating factors applied to the robbery. Most significantly, the applicant committed the offences while on parole, which the Court described as seriously aggravating. His criminal record, which showed a continuing attitude of disobedience of the law rather than an uncharacteristic lapse, also warranted a more severe penalty under the principles in Veen v R (No 2). These factors placed the case above the Henry range, and the Court found no error in the robbery sentence.

On the breaking and entering charge, the Court concluded the sentence was excessive when considered in isolation. The offence involved limited damage, nothing was taken, and no victim was alarmed. Even accounting for the applicant's criminal record and the fact that the charge was committed while on bail, the Court found the six-year concurrent sentence fell outside the legitimate range of sentencing discretion.

The Court substituted a fixed term of two years' imprisonment for the breaking and entering offence, to be served concurrently with the robbery sentence from 13 April 1999. The robbery sentence was otherwise undisturbed.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • Sentence on the breaking and entering charge set aside; a fixed term of two years' imprisonment substituted, to be served concurrently with the robbery sentence commencing 13 April 1999
  • Sentence on the armed robbery charge otherwise confirmed

Key Takeaways

  • Guideline judgments such as R v Henry are not binding rules. A departure from a guideline range does not itself constitute an error warranting appellate intervention; the guideline functions as an indicator to assess whether the sentencing discretion miscarried.
  • Committing offences while on parole is a seriously aggravating factor in sentencing, capable of justifying a sentence above a guideline range.
  • Under the principles in Veen v R (No 2), a substantial criminal history is relevant not to impose a disproportionate sentence, but to demonstrate a continuing attitude of disobedience, which can warrant greater weight being given to retribution, deterrence, and community protection.
  • Where an offence is a break and enter causing limited damage, with nothing stolen and no victim present, a concurrent sentence of the same length as a serious armed robbery may fall outside the proper sentencing range even when the offender has a significant prior record.
  • The Court of Criminal Appeal can set aside a sentence on one charge while leaving undisturbed the sentence on a related charge, substituting a lesser term to be served concurrently.

Legislation and Cases Referenced

Cases:
- R v Henry (1999) 46 NSWLR 346
- R v Morgan (1993) 70 A Crim R 368
- Veen v R (No 2) (1988) 164 CLR 465

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