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Court of Criminal Appeal 23 October 2000

Regina v Taylor

[2000] NSWCCA 442

Assault & violenceTheft & property

Citation: Regina v Taylor [2000] NSWCCA 442
Court: NSW Court of Criminal Appeal
Date: 23 October 2000
Judge(s): Wood CJ at CL, Studdert J, Whealy J

Background

The respondent pleaded guilty to robbery at Campbelltown District Court. The offence involved pushing a 43-year-old woman down stairs at Warwick Farm Railway Station, then wrenching her handbag from her while she lay on the ground. The respondent was apprehended at the scene by bystanders and was found to have $180 concealed in his clothing. He was 18 years old at the time, on bail, and had a prior conviction for larceny.

At sentencing, Moore DCJ was partway through delivering remarks that signalled a full-time custodial sentence when the respondent broke down crying and repeatedly expressed that he did not want to go to gaol. This outburst led the judge to change course. Satisfied that the respondent had achieved genuine rehabilitation and that personal deterrence was "absolute," the judge instead imposed a two-year sentence of imprisonment suspended on a good behaviour bond.

The Crown appealed, arguing the suspended sentence was manifestly inadequate and that full-time custody should have been ordered.

  • Whether the sentence of two years imprisonment, wholly suspended, was manifestly inadequate for a violent robbery involving bag snatching
  • Whether the respondent's emotional outburst during sentencing was a relevant consideration justifying a more lenient sentence
  • Whether, even if the sentence was manifestly inadequate, the Court of Criminal Appeal should exercise its discretion to dismiss the appeal on the basis of "double jeopardy" and the circumstances that had arisen since sentencing

Decision

The Court of Criminal Appeal was unanimous that the sentence was manifestly lenient. Wood CJ at CL noted that this Court's established position is that bag snatching involving any element of violence requires a full-time custodial order absent exceptional circumstances, principally because of the need for general deterrence given the offence's prevalence and the vulnerability of its typical victims. The suspended sentence provided very little, if anything, in the way of general deterrence.

The Court also firmly rejected the suggestion that the respondent's courtroom distress could justify a lighter sentence. Wood CJ at CL observed that the outburst appeared directed at the respondent's own desire to avoid gaol rather than reflecting genuine remorse toward the victim. The circumstances that had caused the sentencing judge to change his mind mid-remarks were, in the Court's view, irrelevant to the proper sentencing exercise.

However, despite finding the sentence manifestly inadequate, the Court exercised its discretion to dismiss the appeal. Whealy J, with whom the other judges agreed, pointed to two significant factors: the respondent had complied with the conditions of his good behaviour bond for approximately 18 weeks since sentencing, and the "double jeopardy" principle, which recognises the additional burden imposed on an offender when a Crown appeal results in a harsher sentence after a period of liberty under the original order. A considerable period of the suspended sentence also remained to run.

Orders Made

  • The Crown appeal was dismissed.

Key Takeaways

  • Violent bag snatching requires full-time custody absent exceptional circumstances, according to well-established Court of Criminal Appeal authority, because general deterrence carries particular weight given the offence's prevalence and the vulnerability of victims.
  • A sentencing judge's change of course in response to a defendant's emotional outburst in the courtroom is not a proper basis for reducing a sentence, particularly where the display appears directed at the offender's own interests rather than expressing genuine remorse for the victim.
  • In dismissing the Crown appeal, the Court reaffirmed that a finding of manifest inadequacy does not automatically lead to resentencing: the Court retains a discretion to dismiss such an appeal where factors including compliance with existing orders and the "double jeopardy" principle weigh against intervention.
  • The double jeopardy principle operates in Crown sentence appeals to recognise the added burden of having hopes raised by a lenient sentence dashed on appeal, and it may be a decisive factor in the Court's exercise of discretion even where error is established.
  • No error was found in the sentencing judge's treatment of the respondent's drug use at the time of the offence: drug-affected state is not a mitigating factor in this context.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Valentini (1989) 46 A Crim R 223
- The Queen v Henry (1999) 46 NSWLR 346
- The Queen v Morgan (NSWCCA, unreported, 24 June 1998)
- The Queen v Hall (NSWCCA, unreported, 28 September 1995)
- The Queen v Ranse (NSWCCA, unreported, 8 August 1994)
- The Queen v Griggs [2000] NSWCCA 33
- The Queen v Lattouf (NSWCCA, unreported, 21 October 1996)
- The Queen v Allpass (1994) 72 A Crim R 561