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Court of Criminal Appeal 18 April 2001

R v Warman

[2001] NSWCCA 147

Assault & violenceTheft & property
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE ROBBERY WORST CATEGORY OF OFFENCE SUBJECTIVE CIRCUMSTANCES

Citation: Warman v R [2001] NSWCCA 147
Court: New South Wales Court of Criminal Appeal
Date: 18 April 2001
Judge(s): Wood CJ at CL; Sully J

Background

The applicant pleaded guilty in the Penrith District Court to one count of robbery under s 94 of the Crimes Act 1900. Twelve additional offences were taken into account on a Form 1, including break and enter, prescription forgery, possession of housebreaking implements, and drug-related driving offences.

The robbery involved the applicant following the owner/operator of a service station home, grabbing him, and seizing a briefcase containing between $2,000 and $3,600 in the day's takings. The applicant was arrested at his home in the early hours of the following morning, where a substantial amount of cash was found.

Robison DCJ sentenced the applicant to seven years' imprisonment with a non-parole period of four years. The applicant sought leave to appeal to the Court of Criminal Appeal, arguing the sentence was manifestly excessive.

  • Whether the robbery fell into the worst category of the offence, justifying a sentence in the upper range
  • Whether the sentencing judge gave sufficient weight to the applicant's timely guilty plea, remorse, and genuine desire for rehabilitation

Decision

On the first ground, the Court of Criminal Appeal held that the offence was properly characterised as serious. The applicant had an extensive criminal history including over 13 years of cumulative custody, the robbery was clearly premeditated (the applicant followed the victim from his workplace), and the victim was in a vulnerable position given the predictable need to carry daily takings. The Court noted that robbery is a serious offence for which deterrence carries special weight, and that the victim was entitled to the protection of firm and consistent sentencing.

The Court acknowledged that, in isolation and without such a weighty criminal record, the total term might have been open to challenge. However, the sentence had to reflect the total criminality across both the charged offence and the Form 1 matters. An additional penalty is to be expected when further offences are taken into account under a Form 1, even if that additional penalty is less than would have been imposed had each offence been prosecuted separately.

On the second ground, the Court found no error. The sentencing judge had expressly taken into account the early guilty plea and the applicant's contrition. The applicant's professed change of attitude and rehabilitation prospects were also given weight, as reflected in the reduced non-parole period, which represented only 57% of the head sentence to allow for an extended supervised post-release rehabilitation period. Against a maximum sentence of 14 years, and with full allowance for all subjective factors, the Court could detect no error of law in the sentence imposed.

The Court also addressed two subsidiary arguments. It found that the Judicial Commission sentencing statistics were of limited utility without regard to the infinite variation in objective and subjective circumstances across cases. Similarly, the comparison invited with the guideline range in Henry for armed robbery was of limited assistance, particularly since that guideline was itself only a starting point subject to adjustment for aggravating or mitigating circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court is not required to treat sentencing statistics as determinative; over-reliance on such figures, without accounting for the full variation in individual circumstances, risks distorting an otherwise correct exercise of sentencing discretion.
  • Where an offender asks that further offences be taken into account on a Form 1, an additional penalty beyond the base sentence for the charged offence is appropriate, though that additional penalty will typically be less than if each matter had been prosecuted separately.
  • Rehabilitation prospects and a timely guilty plea are legitimate mitigating factors, but their weight must be assessed against the totality of the offending and the offender's criminal history. In this case, those factors were reflected in a substantially reduced non-parole period rather than a reduction in the overall head sentence.
  • The Court of Criminal Appeal confirmed that the vulnerability of a victim, and the premeditated nature of a robbery, are matters that support a firm sentencing approach and that general deterrence carries particular importance in robbery cases.
  • Comparing a sentence for robbery under s 94 with the guideline range for the more serious offence of armed robbery is of limited assistance, given that the guideline in Henry was itself only a starting point subject to adjustment for aggravating and mitigating factors.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 94 (robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32 (Form 1 procedure)

Cases
- Roberts (1994) 73 A Crim R 306
- France, NSWCCA, 9 July 1992
- Thwaites, NSWCCA, 6 October 1993
- Crotty, NSWCCA, 29 February 1994
- Henry (1999) 46 NSWLR 346
- Thomson v Houlton (2000) NSWCCA 309
- Morgan (1993) 70 A Crim R 368
- Yin (Muoi), NSWCCA, 30 November 1998
- Bayeh (Louis) [1999] NSWCCA 82
- Dawson (2000) NSWCCA 399
- Lemene (2001) NSWCCA 5