Citation: R v Blackman and Walters [2001] NSWCCA 121
Court: Court of Criminal Appeal, New South Wales
Date: 8 May 2001
Judge(s): Stein JA; Wood CJ at CL; Studdert J
Background
Two respondents, Blackman and Walters, were involved in a series of serious offences committed in late 1997 and early 1998, including an initial break-and-enter at a gun club president's property, theft of a safe containing handguns and ammunition, and a subsequent armed home invasion in which five occupants were present. The respondents, who were young at the time of the offences, were described as junior participants in the criminal enterprise, with a more experienced third party identified as the instigator.
Both respondents pleaded guilty at an early stage. By the time of sentencing in October 2000, each had undertaken significant rehabilitation independently and on his own initiative in the years following the offences. The sentencing judge in the District Court at Tamworth imposed suspended two-year sentences for the armed robbery charges and good behaviour bonds for the remaining counts.
The Crown appealed to the Court of Criminal Appeal, contending that the sentences were manifestly lenient, that the sentencing judge had improperly collapsed a required two-step analysis when suspending the sentences, and that suspension was simply not appropriate given the objective seriousness of armed robbery.
Legal Issues
- Whether the sentences imposed for armed robbery with a dangerous weapon were manifestly lenient, given that the offence carries a maximum of 25 years imprisonment.
- Whether the sentencing judge erred by failing to separately apply the two required steps: first, determining that imprisonment is warranted; and second, determining whether that term should be suspended.
- Whether the exercise of discretion to suspend the sentences was inappropriate given the objective seriousness of the offences and the aggravating circumstances.
Decision
On manifest leniency, the Court held that a non-custodial sentence for armed robbery is justifiable only where exceptional circumstances are demonstrated. It found that the subjective circumstances in each case were powerful enough to meet that threshold. The respondents were young and immature at the time, acted as junior participants under the influence of an older offender, and had each achieved a remarkable degree of rehabilitation through their own efforts in the years since. The Court noted that incarcerating them at this point would have been more likely to entrench criminal behaviour than to build on the progress already made.
The Court also affirmed that community protection is served by successful rehabilitation, and that this consideration carries particular weight for first offenders and those who have not formed settled criminal habits.
On the two-step process, the Court acknowledged that sentencing requires two distinct determinations: first, that imprisonment is appropriate, and second, that the term should be suspended. The sentencing judge had not expressly articulated these steps as separate inquiries. However, the Court was not persuaded that the judge had therefore sought a "soft option" by selecting the maximum sentence eligible for suspension rather than imposing the sentence genuinely considered appropriate. No error of that kind was established.
On the appropriateness of suspension, the Court confirmed that when exercising the discretion to suspend, a sentencing court must consider both rehabilitation and the objective seriousness of the offence. The Court was satisfied the sentencing judge had done so. Given the wholly exceptional circumstances found to exist, suspension of the sentences was within the proper exercise of discretion. The Court also noted that, even if error had been established, the special discretion applicable to Crown appeals would have warranted non-intervention given the substantial time elapsed and the risk to each respondent's rehabilitation.
Orders Made
- Appeal dismissed in respect of both respondents.
Key Takeaways
- A non-custodial sentence for armed robbery is only justifiable where exceptional circumstances are demonstrated; the Court of Criminal Appeal confirmed that a powerful combination of youthful immaturity, minor role, and significant independent rehabilitation can satisfy that threshold.
- Rehabilitation of offenders contributes to community protection, and this consideration assumes particular importance for first offenders and those who have not developed settled criminal patterns of behaviour.
- The two-step sentencing process requires a court to determine first that imprisonment is warranted, and then separately whether the term should be suspended; failure to express those steps explicitly does not automatically establish error unless it can be shown the judge sought a soft option or otherwise chose the wrong primary sentence.
- In dismissing the Crown's appeal, the Court applied the special discretion available in Crown appeals, noting that intervention risked undermining the substantial rehabilitation each respondent had independently achieved over several years.
- Where time has passed significantly between offence and sentencing, and where exceptional rehabilitative progress is demonstrated, a Court of Criminal Appeal may decline to intervene in a Crown appeal even where technical error might otherwise be arguable.
Legislation and Cases Referenced
Legislation:
- Children's (Criminal Proceedings) Act 1987 (NSW), s 6
- Crimes Act 1900 (NSW), s 97(2) (armed robbery with a dangerous weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 12(1)
Cases:
- Henry (1999) 46 NSWLR 346
- Taylor, Court of Appeal Queensland, 20 August 1999
- Edwards (1993) 67 A Crim R 487
- Blocki (1991) 56 SASR 250
- Blanco (1999) NSWCCA 121
- Kovacevic (2000) 11 A Crim R 131
- Yardley and Betts (1979) 22 SASR 108
- Dinsdale (2000) 175 ALR 315
- JCE (2000) NSWCCA 498
- Kyroglou and Tsoukatos (1999) NSWCCA 106
- Hayes (1987) 29 A Crim R 452
- Crotty, CCA NSW, 28 February 1994
- Lattouf, CCA NSW, 12 December 1996