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Court of Criminal Appeal 11 April 2001

R v Griffiths

[2001] NSWCCA 130

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE ARMED ROBBERY IN COMPANY SEVERITY OF SENTENCE DELAY IN SENTENCE

Citation: Griffiths v R [2001] NSWCCA 130
Court: NSW Court of Criminal Appeal
Date: 11 April 2001
Judge(s): Wood CJ at CL; Smart AJ

Background

The applicant was convicted at trial in December 1997 of robbery in company under s 97 of the Crimes Act 1900. He and a female companion entered a victim's home at night wearing balaclavas. The applicant carried a replica pistol and his companion held a knife to the victim's throat. The pair stole jewellery and a handbag before fleeing. The applicant had disabled a porch light before entering, indicating planning.

The applicant was sentenced in the District Court to six years imprisonment with a non-parole period of four years. He appeared in person before the Court of Criminal Appeal seeking leave to appeal against the severity of that sentence.

His grounds covered a wide range of matters: a two-year bail period before sentencing, heroin addiction at the time of the offence, the absence of psychological and pre-sentence reports, an alleged out-of-character offence, disputed victim credibility, the "crossroads" principle, and rehabilitation achieved after conviction.

  • Whether a two-year period on bail before sentencing warranted a reduction in sentence
  • Whether heroin addiction at the time of the offence was a mitigating factor
  • Whether the failure to obtain psychological or pre-sentence reports before sentencing could be raised on appeal
  • Whether the offence was genuinely out of character given the applicant's prior record
  • Whether the applicant had reached a genuine "crossroads" at the time of sentencing
  • Whether post-conviction rehabilitation is a matter the Court of Criminal Appeal can consider when assessing sentence severity

Decision

On the bail delay ground, the Court found the applicant had not identified any actual prejudice caused by the two-year wait, nor demonstrated that bail conditions were particularly oppressive. Without such evidence, delay alone does not justify mitigation of sentence.

On the heroin addiction ground, the Court confirmed that addiction may explain the commission of a robbery-type offence but does not excuse the criminality or reduce the sentence. The Court emphasised the seriousness of this particular offence: it involved a weapon (even if a replica), a knife at the victim's throat, occurred in her home at night, and involved deliberate planning including disguises and disabling a light.

The Court rejected the argument that the absence of psychological and pre-sentence reports was a ground of appeal. The applicant was legally represented at sentencing and had the opportunity to place such material before the court. Having chosen not to do so, he could not rely on that omission on appeal. The Court also rejected the out-of-character ground, noting the applicant had an extensive prior record for dishonesty and break-and-enter offences and had repeatedly been given non-custodial sentences without responding to them.

On the "crossroads" ground, the Court acknowledged that where a person has genuinely reached the crossroads at sentencing, that is a proper mitigating consideration. However, the Court found this applicant did not convincingly meet that description. The sentencing judge had already credited him with some rehabilitative efforts and reduced the non-parole period accordingly. Finally, the Court confirmed that post-conviction developments, such as completing rehabilitation programmes in custody, are generally outside the scope of a sentence appeal. The Court of Criminal Appeal's judicial power is directed at whether the original sentence was correct, not at supervising what occurs afterwards. That latter function belongs to the executive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Bail delay does not automatically reduce a sentence. A person on bail before sentencing must point to specific prejudice or oppressive conditions to justify mitigation on that basis.
  • Heroin addiction may provide context for why an offence was committed but does not, of itself, mitigate sentence for robbery-type offences.
  • Where a defendant is legally represented at sentencing and chooses not to tender psychological or pre-sentence reports, that omission cannot later be raised as a ground of appeal against sentence severity.
  • The "crossroads" principle, which allows genuine signs of turning away from offending to reduce sentence, requires convincing evidence; a history of prior offences and non-custodial sentences that did not deter reoffending will weigh heavily against that finding.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that its role is to assess whether the original sentence was correct in law and whether it was excessive, not to revisit matters arising after conviction. Post-sentence rehabilitation is ordinarily a matter for the executive, not the appellate court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97 (robbery in company)

Cases:
- Todd (1982) 2 NSWLR 517
- Blanco (1999) NSWCCA 121
- Henry (1999) 46 NSWLR 346
- Kavich (1993) NSWCCA (26 October 1993)
- Salemah NSWCCA (9 June 1994)
- Dawson (2000) NSWCCA 433
- Munday (1981) 2 NSWLR 177
- Vachalec (1981) 1 NSWLR 351