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Court of Criminal Appeal 28 November 2000

R v Sainsbury

[2000] NSWCCA 496

Assault & violenceTraffic & drivingPublic order & justice offences
CRIMINAL LAW SENTENCING CROWN APPEAL SERIOUSNESS OF OFFENCE

Citation: R v Sainsbury [2000] NSWCCA 496
Court: Court of Criminal Appeal, New South Wales
Date: 28 November 2000
Judge(s): Wood CJ at CL; Dunford J; Carruthers AJ

Background

Following a jury trial in the District Court at Campbelltown, the respondent was convicted of five offences arising from a single episode: larceny of a motor vehicle, stealing a motor vehicle, two counts of break enter and steal, and using an offensive instrument with intent to prevent apprehension. The last offence arose when, surrounded by police vehicles at the end of a high-speed pursuit, the respondent accelerated a stolen Ford Falcon station-wagon directly into a police car. A constable was struck by the impact, suffered soft tissue injuries to his wrist and elbow, and was unable to use his right arm for two weeks.

The sentencing judge imposed 100 hours of community service for the offensive instrument offence and a further 100 hours (cumulative) across the remaining four counts, for a total of 200 hours. The Director of Public Prosecutions appealed under section 5D of the Criminal Appeal Act 1912, arguing the sentences were manifestly inadequate, particularly for the section 33B offence, which carries a maximum penalty of 12 years imprisonment.

The respondent was 27 years old at the time of sentencing, had only one prior conviction (larceny, fined $500), had spent one month in custody on remand, and had since engaged in paid employment, completed 100 hours of community service (with additional voluntary hours), and gave evidence against a former criminal associate.

  • Whether the sentence of 100 hours community service for the offence of using an offensive instrument with intent to prevent apprehension (s 33B, Crimes Act 1900) was manifestly inadequate.
  • Whether, if error was established, re-sentencing should result in full-time custody or some lesser custodial form, having regard to the respondent's rehabilitation and the principle of double jeopardy.
  • Whether the Crown appeal should be dismissed in respect of the four remaining offences.

Decision

The Court of Criminal Appeal held that the sentencing judge fell into error by not imposing a full-time custodial sentence for the section 33B offence. Dunford J, with whom Wood CJ at CL and Carruthers AJ agreed, emphasised that offences under section 33B, particularly those involving the use of a motor vehicle as a weapon against police, are regarded by the courts as extremely serious. The principle from R v Hamilton was applied: the courts must show appropriate support for police officers performing difficult and dangerous duties.

Comparable sentencing decisions reinforced this view. In Hamilton, an effective sentence exceeding four years was imposed for a similar offence. In R v Hutchinson, a sentence of four and a half years following a guilty plea was left undisturbed. A sentence of 100 hours community service for an offence of this gravity was, in the Court's view, plainly insufficient.

Despite upholding the Crown appeal, the Court declined to impose full-time imprisonment. It found the circumstances sufficiently exceptional to warrant periodic detention instead. Relevant factors included the double jeopardy principle (which applies whenever a sentence is increased on appeal), the community service already completed, the respondent's cooperation with police and prosecutors, her continued rehabilitation, her period in custody on remand, and the evidence that she had distanced herself from former criminal associates.

The Crown appeal in respect of the other four offences was dismissed, and the 100 hours of community service already served was attributed to those counts.

Orders Made

  • Crown appeal upheld in respect of the section 33B offence.
  • Sentence of 100 hours community service for that offence quashed.
  • Respondent re-sentenced to 18 months imprisonment with a non-parole period of 12 months, to be served by way of periodic detention, commencing 6 December 2000 at the Norma Parker Centre, Parramatta.
  • Crown appeal dismissed in respect of the remaining four offences.
  • The 100 hours community service already served attributed to the remaining four counts.

Key Takeaways

  • Offences under section 33B of the Crimes Act 1900 involving the use of a motor vehicle against police officers are treated by the Court of Criminal Appeal as extremely serious, and a non-custodial sentence will ordinarily represent error.
  • Community service alone was insufficient to reflect the objective gravity of an offence that endangered a police officer during an arrest attempt, regardless of the offender's otherwise limited criminal history.
  • Even where a Crown appeal succeeds and a sentencing error is established, the principle of double jeopardy requires the appellate court to moderate the sentence it would otherwise have imposed.
  • Exceptional subjective circumstances, including demonstrated rehabilitation, cooperation with authorities, time already served, and completion of prior orders, can justify periodic rather than full-time detention on re-sentencing.
  • In dismissing the appeal as to the remaining four offences, the Court confirmed that 200 hours of cumulative community service (not 100, as the Corrective Services Department had administered) was the correct sentence imposed below.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), ss 33B, 112, 154A, 154AA

Cases:
- R v Hamilton (1993) 66 A Crim R 575
- R v Hutchinson [2000] NSWCCA 113
- R v Bazzi [1999] NSWCCA 346