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Court of Criminal Appeal 25 February 2000

R v S.D.

[2000] NSWCCA 43

Assault & violenceDrugsTheft & property
CRIMINAL LAW AND PROCEDURE SENTENCE MULTIPLE ARMED ROBBERIES

Citation: R v S.D. [2000] NSWCCA 43
Court: NSW Court of Criminal Appeal
Date: 25 February 2000
Judge(s): Grove J; Smart AJ

Background

The appellant was a man in his early thirties with a significant criminal history, including a prior armed robbery conviction in 1995 for which he had served a minimum term and been released on parole. Shortly after his release, between 13 March and 5 April 1998, he committed 31 armed robberies or assaults with intent to rob whilst armed across 23 days, targeting commercial premises in western and south-western Sydney. The weapons used included knives, scissors, and blood-filled syringes. He was arrested on 6 April 1998 and upon arrest acknowledged that his "run had come to an end," attributing his offending to a cocaine habit costing approximately $1,000 per day.

He pleaded guilty at the earliest opportunity in the Local Court. He also provided significant assistance to authorities in relation to an unrelated murder investigation, which the sentencing judge described as critical. As a result of his cooperation, he was required to serve his prison time in protection, with all the hardship that entails.

The appellant was sentenced by Latham DCJ in the District Court to concurrent sentences of a minimum term of seven years and an additional term of three years on each of six armed robbery charges. He sought leave to appeal, arguing the sentences did not adequately reflect the discounts to which he was entitled for his guilty plea and his assistance to authorities.

  • Whether the sentences imposed sufficiently reflected the discount available for a guilty plea where the Crown case would otherwise have been unlikely to succeed (the Ellis discount)
  • Whether the sentences adequately reflected the separate and substantial discount warranted by the appellant's significant assistance to authorities in an unrelated murder matter
  • Whether the overall sentences were within the sound exercise of the sentencing judge's discretion, having regard to the nature and extent of the offending and the appellant's background

Decision

The Court of Criminal Appeal dismissed the appeal, finding that the sentences imposed were within the sound exercise of the sentencing judge's discretion. While the trial judge did not specify her starting point or itemise the individual discounts applied, she took an overall approach to the task.

Smart AJ considered that a starting point of effective head sentences totalling 18 years with a minimum term of 14 years would not have been excessive, given the scale and seriousness of the offending. On that basis, the sentences as imposed represented an overall discount of approximately 45 to 50 per cent, which adequately reflected both the Ellis discount and the discount for cooperation with authorities.

The Court acknowledged that both discounts had to be substantial. The Ellis discount applied because only a small number of the charged offences were independently supported by identification evidence sufficient to give reasonable prospects of conviction, meaning the appellant had provided significant evidence against himself. The cooperation discount was warranted by the critical assistance the appellant had given and would give in the murder investigation.

The Court found no error in the sentencing approach. Despite the sentences being lengthy, the Court held they had to be, given the 31 offences committed in 23 days, the use of knives and blood-filled syringes, and the fact that the offending occurred shortly after release on parole for a similar offence.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A combined discount of approximately 45 to 50 per cent was found to be appropriate where an offender both pleaded guilty at the first opportunity (with the Crown case substantially dependent on self-incriminating admissions) and provided critical assistance to authorities in a serious unrelated matter.
  • The principle from R v Ellis (1986) 6 NSWLR 603 confirms that a particular discount is available to an offender who provides evidence against themselves in circumstances where the Crown would otherwise have had insufficient evidence to secure conviction.
  • In dismissing the appeal, the Court confirmed that a sentencing judge is not required to specify a starting point or itemise individual discounts, provided the overall sentence reflects the relevant allowances and falls within the range of a sound exercise of discretion.
  • Offending committed shortly after release on parole for materially similar offences operates as a significant aggravating factor, affecting the baseline from which any discounts are applied.
  • Serving a sentence in protective custody, with the onerous conditions that entails, is a relevant subjective factor a sentencing court may take into account.

Legislation and Cases Referenced

Cases:
- R v Ellis (1986) 6 NSWLR 603 (principle regarding discount for guilty pleas where the Crown case depends substantially on the offender's own admissions)

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