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Court of Criminal Appeal 30 March 2001

REGINA v. ANDERSON

[2001] NSWCCA 115

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL OTHERWISE NO MATTER OF PRINCIPLE SENTENCES AND NON PAROLE PERIOD BACKDATED.

Citation: Regina v Anderson [2001] NSWCCA 115
Court: NSW Court of Criminal Appeal
Date: 30 March 2001
Judge(s): Wood CJ at CL; Greg James J

Background

The appellant was convicted by jury of break, enter and steal, and pleaded guilty to larceny and detaining a person for advantage under s.90A of the Crimes Act 1900. The offences arose from a pre-dawn attack on a bread vendor outside a bakery, in which the victim was tied with electrical cord, forced into a freezer with a pillowcase over his head, and had a gun used against him. A large quantity of cigarettes was stolen. Two further offences were taken into account on a Form 1: possession of a small amount of cannabis and entering enclosed lands.

The sentencing judge in the District Court imposed a primary sentence of seven years for the detain for advantage offence, with a non-parole period of five years and two months. All sentences were structured to commence on 6 April 2000.

The appellant, who appeared unrepresented before the Court of Criminal Appeal, sought leave to appeal on the basis that the sentences were excessive. Critically, he had been held in custody, bail refused, from 12 September 1999 to 27 October 1999, a period of approximately 45 days that had not been brought to the sentencing judge's attention when the commencement date of the sentences was set.

  • Whether the sentencing judge erred by failing to account for the approximately 45-day period the appellant spent in pre-sentence custody with bail refused
  • Whether the sentence imposed for the detain for advantage offence was otherwise excessive or infected by error
  • Whether any other error existed in the structuring or totality of the sentences

Decision

Greg James J, delivering the primary judgment, found no error in the sentencing judge's overall approach to the offences. The judge's assessment of the appellant's poor prospects of rehabilitation, his extensive record for dishonesty, the seriousness of the detention offence, and the fact that the Agnes Banks break and enter was committed while the appellant was on bail, were all properly considered and weighed.

The Court rejected the appellant's argument that his plea to the detain for advantage charge had produced unfairness. It found that the appellant's participation in the offence was full, regardless of whether he personally inflicted serious violence on the victim, and that nothing undermined the integrity of the plea.

The single established error was the sentencing judge's failure to take into account the 45-day period the appellant spent in custody with bail refused before his release on 27 October 1999. That period had not been drawn to the judge's attention during discussions about the commencement date. The Court noted that extending the full benefit of this period was, to some degree, generous given the later offences were committed while the appellant was on bail for the earlier matter, but concluded that a correction was nonetheless warranted.

The Court varied the sentences so that all terms and the non-parole period would commence on 21 February 2000 rather than 6 April 2000, effectively advancing the commencement date by 45 days.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • All sentences and non-parole periods varied to commence on 21 February 2000, expiring in each case 45 days earlier than the dates stipulated by the sentencing judge

Key Takeaways

  • A sentencing court's failure to take into account a period spent in pre-sentence custody with bail refused constitutes a specific, correctable error on appeal, even where the overall sentence is otherwise unimpeachable.
  • No broader error was established in the District Court's approach to structuring concurrent sentences across multiple offences of differing gravity, following the High Court's guidance in Pearce v The Queen (1988) 194 CLR 610.
  • Full participation in a group offence involving serious violence against a victim can support a conviction and sentence under s.90A of the Crimes Act 1900, even where the individual offender did not personally inflict the violence.
  • Where a later offence is committed while the offender is on bail for an earlier matter, any concession arising from pre-sentence custody on the earlier matter may be characterised as generous rather than strictly mandated.
  • The Court of Criminal Appeal's intervention was limited strictly to the commencement date correction; no other aspect of the sentence was disturbed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s.90A (detain for advantage)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s.52

Cases:
- Regina v Ponfield & Ors [1999] NSWCCA 435 (guideline judgment for break, enter and steal)
- Pearce v The Queen (1988) 194 CLR 610 (structuring of concurrent sentences)