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Court of Criminal Appeal 9 August 2000

R v Jarrett

[2000] NSWCCA 334

Assault & violenceTheft & propertyFirearms & weaponsPublic order & justice offences

Citation: R v Jarrett [2000] NSWCCA 334
Court: New South Wales Court of Criminal Appeal
Date: 9 August 2000
Judge(s): James J, Dowd J

Background

The appellant pleaded guilty in the District Court to one charge of being an accessory after the fact to an armed robbery committed at a credit union in Bellingen on 4 February 1999. The appellant had driven three principal offenders to the location, waited in the vehicle while they committed the robbery (during which a loaded firearm was discharged), and then drove them away from the scene, leading police on a chase that ended when the car collided with a tree.

The appellant was arrested on 21 February 1999 and remained in custody until sentencing. The sentencing judge, Christie DCJ, imposed a term of penal servitude of four years, with a minimum term of three years and an additional term of one year, commencing from the date of arrest.

The appellant sought leave to appeal against that sentence. The central issue on appeal was a fundamental factual error the sentencing judge made in identifying the maximum penalty applicable to the offence.

  • Whether the sentencing judge's mistaken identification of the maximum penalty (five years rather than fourteen years under s 349(2) of the Crimes Act) was so fundamental as to require the Court of Criminal Appeal to intervene and re-sentence the appellant.
  • What sentence was appropriate upon re-sentencing, taking into account the objective seriousness of the offence, the appellant's plea of guilty, his youth, his aboriginality, and the principles in R v Fernando.
  • Whether special circumstances existed justifying a non-parole period shorter than the statutory default ratio.
  • Whether the sentence should reflect proper proportionality with the sentences imposed on the principal offenders.

Decision

James J (with Dowd J agreeing) held that although the sentencing judge's error as to the maximum penalty operated in the appellant's favour, it was so fundamental to the entire reasoning process that the sentencing discretion had miscarried. The sentencing judge had expressly anchored his reasoning to a maximum of five years, concluding the offence fell within the worst category and calibrating the discount for the plea accordingly. That error could not be treated as immaterial.

On re-sentencing, the Court accepted the offence was objectively serious but declined to classify it as falling within the worst class of case. Critically, the appellant had no prior knowledge an armed robbery was planned, and he had little time to make a considered decision when the principal offenders ran to the vehicle and demanded he drive away. This distinguished his moral culpability from that of the principal offenders.

The Court considered the sentences imposed on the two principal offenders (eight and a half years each, though reflecting criminality from a separate armed robbery in which the appellant played no part) and maintained that, while strict parity did not apply across different offences, proper proportionality was required. The Court also applied the R v Fernando principles relevant to sentencing Aboriginal offenders, and found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 based on the appellant's youth, his Aboriginality, and his need for a longer period of supervised conditional liberty.

The resulting sentence was reduced to three years' imprisonment, with a non-parole period of two years commencing 21 February 1999.

Orders Made

  • Leave to appeal granted.
  • Sentence imposed by Christie DCJ quashed.
  • Appellant sentenced to three years' imprisonment, commencing 21 February 1999.
  • Non-parole period of two years fixed, commencing 21 February 1999 and expiring 20 February 2001.
  • Parole order made directing release of the appellant at the end of the non-parole period.

Key Takeaways

  • A sentencing judge's error in identifying the maximum penalty for an offence can vitiate the entire sentencing exercise, even where the error operated in the offender's favour, if the maximum penalty formed a foundational element of the reasoning.
  • Under s 349(2) of the Crimes Act, the maximum penalty for being an accessory after the fact to armed robbery is fourteen years' imprisonment, not five years. This is substantially higher than the maximum for accessory after the fact to aggravated robbery, which carries a maximum of five years.
  • Where an offender charged as an accessory after the fact had no prior knowledge of the planned offence and limited opportunity to make a deliberate decision to assist, those circumstances bear on the assessment of objective seriousness and may take the case below the worst category.
  • Strict parity in sentencing does not apply between an accessory after the fact and the principal offenders, as they are sentenced for different offences. However, proper proportionality between their respective sentences remains a relevant consideration.
  • The Court of Criminal Appeal confirmed that youth, Aboriginality, and the need for a longer period of supervised post-release support can collectively constitute special circumstances warranting an extended additional term (or, under the 1999 Act, a reduced non-parole period relative to the total sentence).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 349(2) (maximum penalty for accessory after the fact to armed robbery)
- Sentencing Act 1989 (NSW), s 5(2) (special circumstances)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (special circumstances)

Cases:
- R v Leonard (2000) 28 NSWCCA (accessory after the fact to aggravated robbery; sentence of ten months imposed on re-sentencing)
- R v Fernando (Wood J) (principles applicable to sentencing Aboriginal offenders)