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Court of Criminal Appeal 16 February 2000

Regina v Hawkins

[2000] NSWCCA 434

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL ROBBERY IN COMPANY ALLEGED LACK OF PARITY WITH CO OFFENDOR WHO WAS A JUVENILE

Citation: Regina v Hawkins [2000] NSWCCA 434
Court: NSW Court of Criminal Appeal
Date: 16 February 2000
Judge(s): Sully J; Carruthers AJ

Background

The appellant, an 18-year-old male with no prior criminal record, pleaded guilty to one count of robbery in company under s 97(1) of the Crimes Act 1900, carrying a maximum penalty of 20 years penal servitude. The offence occurred in March 1999, when the appellant and a 15-year-old co-offender, wearing balaclavas, approached a food bar proprietor and his assistant and took the day's takings. The sentencing judge found that the appellant did not know his co-offender was armed and expressly declined to hold the co-offender's assault on the victim against the appellant.

Three days after the offence, the appellant was arrested and participated in an electronically recorded interview. During that interview, he made full admissions and named both his co-offender and a third person who had subsequently taken the stolen money from them by confrontation.

At first instance, Judge Luland QC in the District Court sentenced the appellant to a minimum term of one year penal servitude, with an additional term of two years. The appellant sought leave to appeal on the grounds that the sentencing judge had failed to account for his assistance to authorities and that his sentence was disproportionate compared to the outcome for his younger co-offender.

  • Whether the sentencing judge erred by failing to give the appellant any credit for the assistance he rendered to authorities, including naming both his co-offender and a third party during his electronically recorded interview.
  • Whether the sentence imposed created an unjustifiable disparity with the outcome for the co-offender, a juvenile dealt with under the Young Offenders Act 1997.

Decision

On the first ground, the Court of Criminal Appeal found that the sentencing judge's failure to mention the appellant's assistance to authorities at all during the sentencing remarks constituted an appealable error. The appellant had made full admissions, named the co-offender who was then arrested shortly afterward, and identified the third party who had taken the proceeds. This assistance was a significant subjective factor that required express consideration.

On parity, the Court noted that by the time of the appeal the co-offender had been dealt with at the Children's Court, pleaded guilty to the same charge, and was ultimately referred for a youth conference under the Young Offenders Act 1997 rather than receiving a custodial sentence. The Court acknowledged that the co-offender's different treatment was substantially explained by his age and the operation of the distinct legislative regime applying to juveniles, rather than by any unjustified preference.

The Court declined to disturb the sentencing judge's decision to impose full-time custody, accepting that the offence warranted a custodial sentence given its seriousness and the deterrent principles relevant to robbery offences, as confirmed by the guideline judgment in Regina v Henry. However, taking into account the assistance to authorities and further subjective circumstances placed before the Court of Criminal Appeal (including the appellant's rehabilitation efforts and experiences of harm within the prison system), the Court re-sentenced the appellant to a reduced minimum term of six months, with an additional term of 18 months.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld.
  • Original sentence quashed.
  • The appellant re-sentenced to a minimum term of six months penal servitude commencing 30 September 1999 and expiring 29 March 2000, with an additional term of 18 months commencing 30 March 2000 and expiring 29 September 2001.
  • The appellant to be released to parole at the expiration of the minimum term and subject to supervision and guidance of the Probation and Parole Service for such portion of the additional term as the Service deemed necessary.

Key Takeaways

  • A sentencing judge's complete failure to address an offender's material assistance to authorities, including naming co-offenders during a recorded interview, constitutes an appealable error that may warrant re-sentencing on appeal.
  • Where a co-offender is a juvenile dealt with under a separate statutory regime (the Young Offenders Act 1997), the different outcome does not automatically give rise to a viable parity ground, because the legislative framework governing juveniles operates distinctly from that applying to adult offenders.
  • Under the principles confirmed in Regina v Henry, robbery in company and armed robbery are treated as cognate offences for sentencing guidance purposes, and a significant deterrent element remains a relevant factor even where strong subjective circumstances exist.
  • Subjective circumstances arising after the original sentencing, including rehabilitation efforts and harm suffered by the offender within the custodial setting, may be placed before the Court of Criminal Appeal and taken into account when re-sentencing following a successful appeal.
  • In re-sentencing, the Court found that special circumstances justified a departure from the standard ratio between minimum and additional terms, resulting in a longer additional term relative to the minimum.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Young Offenders Act 1997 (NSW)
- Crimes Act provisions relating to assistance to authorities (s 442B, referenced in the judgment)

Cases
- Regina v Henry (1999) 46 NSWLR 346 (Court of Criminal Appeal guideline judgment on armed robbery sentencing)