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Court of Criminal Appeal 6 December 2000

R v West

[2000] NSWCCA 545

Assault & violenceTheft & propertyFirearms & weapons

Citation: R v West [2000] NSWCCA 545
Court: NSW Court of Criminal Appeal
Date: 6 December 2000
Judge(s): Simpson J; Carruthers AJ

Background

The applicant pleaded guilty in the District Court to assault with intent to rob whilst armed with an offensive instrument, contrary to s 97(1) of the Crimes Act 1900. The offence occurred at a pharmacy in Auburn in September 1998, where the applicant threatened a female pharmacist with a blood-filled syringe and jumped over the counter, causing her to fall. The maximum penalty for the offence was 20 years' imprisonment.

Kinchington DCJ sentenced the applicant to six years' imprisonment with a non-parole period of three and a half years, commencing 12 May 2000. The applicant sought leave to appeal against the severity of the sentence, specifically targeting the length of the non-parole period.

The applicant was an Aboriginal man with a history of heroin use beginning at age 16. In the approximately 20 months between the offence and sentencing, he had remained on bail without further charges, commenced a carpentry apprenticeship, maintained employment, and had sole custody of a young daughter.

  • Whether the non-parole period of three and a half years adequately reflected the applicant's progress toward rehabilitation in the period between the commission of the offence and sentencing
  • Whether the head sentence of six years was appropriate having regard to the guideline in R v Henry and the objective circumstances of the offence
  • Whether the applicant's responsibility for the care of his daughter constituted an exceptional circumstance justifying a reduction in sentence under R v Edwards

Decision

The Court accepted that the head sentence of six years was appropriate and did not disturb it. Simpson J noted that the offence fell outside the profile described in the Henry guideline (which specified a full term of four to five years for this type of robbery), because the applicant was not a young offender with a limited criminal history. His history of offending and the fact he committed the offence while subject to a recognisance justified a sentence at the top of, or one year above, the Henry range.

The Court found that the sentencing judge had expressly acknowledged the applicant's rehabilitation efforts but concluded that the weight given to those efforts was inadequate. The nearly 20-month gap between the offence and sentencing, during which the applicant remained law-abiding, commenced study, and maintained employment and family responsibilities, warranted greater recognition in the non-parole period.

Simpson J reduced the non-parole period by six months, from three and a half years to three years. The Court characterised the use of a blood-filled syringe as a particularly serious and increasingly common form of armed robbery, confirming that condign punishment remained necessary regardless of the applicant's subjective circumstances.

On the question of the applicant's parental responsibilities, the Court held that his need to care for his daughter did not constitute an exceptional circumstance of the kind recognised in R v Edwards, and no reduction on that basis was warranted.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence quashed to the extent of the non-parole period
  • In substitution, the applicant sentenced to six years' imprisonment with a non-parole period of three years

Key Takeaways

  • Progress toward rehabilitation in the period between an offence and sentencing can constitute a legitimate basis for reducing a non-parole period, even where the head sentence remains undisturbed.
  • The Court of Criminal Appeal confirmed that offences involving blood-filled syringes are regarded as particularly serious, and sentences at or above the upper range set in R v Henry may be warranted where the offender does not match the guideline profile.
  • Under R v Edwards, an offender's responsibility for the care of a child does not automatically constitute an exceptional circumstance reducing sentence; the threshold for that finding is not easily met.
  • Where a sentencing judge expressly acknowledges rehabilitation efforts but the resulting non-parole period does not adequately reflect them, appellate intervention is available to correct the inadequacy.
  • An offender's criminal history and the fact that an offence was committed while subject to a recognisance are relevant aggravating factors that can justify a sentence beyond the guideline range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (assault with intent to rob whilst armed with an offensive instrument)

Cases:
- R v Henry and Ors [1999] NSWCCA 111; 46 NSWLR 346 (guideline judgment for robbery offences)
- R v Edwards (1996) 90 A Crim R 510 (exceptional circumstances and parental responsibility)
- Wright v R (1989) 45 A Crim R 423
- R v Todd [1982] 2 NSWLR 517
- R v Micallef (1990) 50 A Crim R 465