Citation: R v Mahe [2000] NSWCCA 425
Court: NSW Court of Criminal Appeal
Date: 13 October 2000
Judge(s): Hulme J; Barr J
Background
The appellant was sentenced in the District Court on 11 December 1998 on three offences. The most serious was an armed robbery in which he wounded the victim, contrary to section 96 of the Crimes Act, for which he received penal servitude of five years minimum term and two years additional term. He also received concurrent fixed terms of two years for a separate robbery and one year for assault.
The appellant had been convicted by jury on the wounding robbery and pleaded guilty to the other two offences. All three sentences were directed to commence on 24 March 1999, the date on which a pre-existing 12-month sentence was due to expire, making the new sentences cumulative on that earlier term.
The appellant appeared in person before the Court of Criminal Appeal, relying on a written advice prepared by counsel that identified several potential grounds of appeal. Counsel had assessed most grounds as having no prospect of success, leaving only a few as arguable.
Legal Issues
- Whether the new sentences should have been backdated rather than made cumulative on the existing 12-month sentence
- Whether the sentencing judge failed to apply the principle of totality in setting the overall sentence
- Whether a period of pre-sentence custody (bail refusal) should have been taken into account by the sentencing judge
- Whether the sentencing judge correctly applied the finding of special circumstances when fixing the ratio of minimum to additional term
Decision
On the question of backdating and cumulation, the Court found no error. The sentences were properly made cumulative on the earlier term, as required by the Sentencing Act. The earlier offences and the later offences could not be treated as part of a single course of criminality, having occurred more than 12 months apart, and there was no basis to require them to be served concurrently.
On totality, the Court acknowledged that the sentencing judge did not expressly mention the principle, but was satisfied that an experienced criminal law judge would not have overlooked it. Given that the pre-existing sentence was only 12 months, the Court found the impact of any totality consideration would in any event have been very small.
On pre-sentence custody, the Court found that the relevant bail-refused period had already been factored into the backdating of the commencement date for the earlier Ryde sentence. It would therefore have been inappropriate to credit that period again in the later sentencing exercise.
On special circumstances, the Court found that the sentencing judge had in fact increased the additional term at the expense of the minimum term within the sentences he imposed. There was no obligation to extend that adjustment further merely because the appellant was also serving an earlier minimum term.
Orders Made
- Application for leave to appeal granted
- Appeal refused
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that sentences for distinct offences separated by more than 12 months are not required to be treated as part of a single course of criminality, and cumulation on a pre-existing sentence may be appropriate.
- A sentencing judge's failure to expressly articulate the totality principle does not in itself establish error, particularly where the judge is experienced in criminal work and the pre-existing sentence is relatively short.
- Pre-sentence custody that has already been credited against an earlier sentence cannot be credited a second time when imposing a subsequent sentence.
- Where a finding of special circumstances is made, the sentencing court's obligation is to adjust the minimum and additional term ratio within the sentences it is imposing; no further adjustment is required simply because the offender is also subject to an earlier minimum term.
- Under section 96 of the Crimes Act, the guidelines established in R v Henry for standard armed robbery remain relevant, but offences involving wounding and offenders with significant prior criminal records may properly attract sentences above the guideline range of four to five years.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61, 94, 96
- Sentencing Act 1989 (NSW), s 9
Cases:
- R v Henry (guideline judgment on armed robbery sentencing)