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Court of Criminal Appeal 21 March 2001

R v Speeding, Bradley Adam

[2001] NSWCCA 105

Also reported as (2001) 121 A Crim R 426
Assault & violenceTheft & propertyPublic order & justice offences
SENTENCING CROWN APPEAL SENTENCES INCREASED.

Citation: R v Speeding, Bradley Adam [2001] NSWCCA 105
Court: NSW Court of Criminal Appeal
Date: 21 March 2001
Judge(s): Giles JA; Wood CJ at CL; Simpson J

Background

The respondent, a 19-year-old man, pleaded guilty to five counts of robbery whilst armed with an offensive weapon and one count of robbery simpliciter. All six offences involved the armed robbery of fast food outlets (KFC, McDonald's, and Red Rooster) using a large knife, committed over approximately six months between late April and early October 2000.

After police contact following earlier offences, the respondent was arrested and granted bail in June 2000 in relation to the fourth robbery. While on bail and awaiting trial on that charge, he committed two further armed robberies in September and October 2000. He was ultimately arrested in October 2000 and made admissions to all offences except the one for which he had originally been charged.

The respondent had a difficult personal history, including the early death of his father and the later death of his sister in a motor vehicle accident. He subsequently developed addictions to heroin and gambling, and attributed the robberies to funding those habits. The sentencing judge in the District Court imposed all six sentences to run concurrently from the same date, making the respondent eligible for parole in approximately two and a half years. The Director of Public Prosecutions appealed on the ground that the sentences were manifestly inadequate.

  • Whether the sentencing judge gave sufficient weight to the multiplicity of offences, specifically six separate armed robberies committed over six months.
  • Whether sufficient weight was given to the fact that two offences were committed while the respondent was on bail.
  • Whether the sentencing judge adequately accounted for the serious impact of the offences on the victims.
  • Whether there was reasonable proportionality between the objective gravity of the offences and the weight given to subjective mitigating factors.
  • How the sentences should be restructured on re-exercise of the sentencing discretion.

Decision

Giles JA (with Wood CJ at CL and Simpson J agreeing) held that the sentencing judge had erred in a number of respects. While the subjective circumstances of the respondent, including his personal history, addiction, remorse, and rehabilitative prospects, warranted genuine weight, the judge failed to maintain reasonable proportionality between those matters and the objective seriousness of the offending.

The Court found that the sentencing judge did not give adequate weight to the sheer number of offences. Six armed robberies over six months, each targeting fast food workers who were threatened at knifepoint, represented serious and sustained criminal conduct. The distress and fear experienced by the victims was a significant aggravating feature.

Particular concern was expressed about the two robberies committed while the respondent was on bail. Offending on bail is treated as a meaningful aggravating circumstance, and the concurrent structure of all six sentences failed to reflect that reality. The Court noted that, while total concurrency is not inherently impermissible, in this case it produced an outcome that was not reasonably proportionate to the overall criminality involved.

The Court acknowledged that the sentencing judge had appropriately identified the case as falling within the guideline judgment in R v Henry, and that rehabilitative prospects were real. However, these considerations could not justify the degree of leniency ultimately reflected in the sentences as structured.

Orders Made

  • Appeal upheld.
  • Five of the six sentences quashed.
  • Sentences for the three earliest offences (29 April, 2 May, and 4 May 2000) increased to four years and six months imprisonment with a non-parole period of two years each.
  • Sentences for the two offences committed on 15 September and 1 October 2000 retained at five years and three months with a non-parole period of two years and nine months, but restructured to commence on 14 December 2002 (rather than 14 December 2000), producing partial accumulation on the earlier sentences.
  • The sentence for the 15 May 2000 offence was not adjusted.
  • All sentences remained subject to a sixty-five day reduction for pre-sentence custody.
  • Net effect: total sentence extended by two years and total non-parole period extended by two years.
  • Orders made in accordance with short minutes signed by both counsel.

Key Takeaways

  • Concurrent sentences for multiple serious offences will not always be appropriate. Where a respondent commits six armed robberies over six months, full concurrency may fail to reflect the true extent of the criminality and will be susceptible to Crown appeal.
  • Offending while on bail is a recognised aggravating factor. The Court of Criminal Appeal confirmed that sentencing outcomes must give meaningful weight to this circumstance, and a structure that effectively neutralises it may be found to be manifestly inadequate.
  • Partial accumulation of sentences is an available and appropriate tool where concurrent sentences produce a result disproportionate to the overall offending. The Court restructured the later sentences to commence after a two-year interval.
  • Genuine subjective mitigating factors, including addiction, personal tragedy, remorse, and rehabilitative prospects, do not automatically justify a significant reduction in sentences for objectively serious offending. Proportionality between objective gravity and subjective matters remains a binding sentencing requirement.
  • The guideline judgment in R v Henry provides a relevant sentencing range for armed robbery, but its application must be considered alongside the totality of the offending, particularly where multiple offences are involved.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D (Crown appeals against sentence)
- Justices Act 1902 (NSW), s 51A (committals for sentence)

Cases Cited:
- R v Henry (1999) 46 NSWLR 346 (armed robbery guideline judgment)
- R v Allpass (1994) 73 A Crim R 561
- R v Bavadra [2000] NSWCCA 292
- R v Dodd (1991) 57 A Crim R 349
- R v Richards (1982) 2 NSWLR 464
- R v Wheeler [2000] NSWCCA 34