Citation: Regina v Holden [2001] NSWCCA 214
Court: NSW Court of Criminal Appeal
Date: 28 May 2001
Judge(s): Carruthers AJ; Badgery-Parker AJ
Background
The appellant was convicted on two counts arising from armed robberies committed on the night of 9-10 May 1999. Armed with a loaded .38 calibre revolver, he attempted to rob a service station attendant at Erina and succeeded in robbing a service station attendant at Womberal. The second victim, who believed the gun was genuine (correctly so), was visibly shaken and had the weapon pointed and waved at him during the robbery.
The appellant was 43 years old at the time of sentencing, with an extensive prior record including multiple armed robbery convictions and a nineteen-and-a-half year aggregate sentence imposed in 1985. After release on parole around June 1992, he had remained largely offence-free for nearly seven years, maintained steady employment as a trackwork rider, and was enrolled in a methadone program, though his drug use had deteriorated in the period preceding the offences.
In the District Court at Gosford, Judge Job QC sentenced the appellant to a total of eight years penal servitude, with a minimum term of six years. The appellant sought leave to appeal on the ground that the total effective sentence was manifestly excessive.
Legal Issues
- Whether the total sentence of eight years was manifestly excessive given the objective seriousness of the offences and the appellant's subjective circumstances.
- Whether the sentencing judge gave insufficient weight to favourable subjective factors, including the guilty plea, the period free of major offending, employment history, and participation in drug treatment programs.
- Whether the judge was required to specify the degree of reduction in penalty attributable to each individual subjective circumstance.
- How the principle of totality applies when multiple sentences are accumulated.
- Whether the accumulation of sentences can itself constitute a "special circumstance" justifying a reduction in the proportional non-parole period on a later sentence.
Decision
The Court of Criminal Appeal rejected the submission that the total sentence was manifestly excessive. Badgery-Parker AJ emphasised the serious nature of armed robbery offences committed against persons in vulnerable occupations, noting the Court's established practice of imposing deterrent sentences in such cases. The Court found that the sentencing judge had plainly taken all subjective factors into account, and that had those factors not been given full weight, the sentence would have been heavier.
On the question of subjective circumstances, the Court confirmed that a sentencing judge is not required to specify the degree of reduction in penalty attributable to each favourable factor considered. Indeed, the Court indicated that a judge should not do so. Compliance with that approach was evident from the District Court's judgment and provided no basis for error.
Notwithstanding the rejection of the manifest excess ground in principle, the Court proceeded to resentence the appellant by applying the principle of totality. Assessing the two offences separately, Badgery-Parker AJ identified a three-year term as appropriate for the first (attempted robbery) and six years as appropriate for the second (completed robbery with the loaded weapon pointed at the victim) if each stood alone. A combined nine-year term, however, was found to exceed what the totality of criminality warranted, and the sentences were restructured accordingly.
The Court also found that the fact of accumulation of the two sentences was itself a special circumstance within the meaning of the sentencing legislation, justifying a non-parole period on the second sentence of less than the standard three-quarters of the head sentence. A non-parole period was not set for the first count in light of the accumulated sentence running immediately after it.
Orders Made
- Leave to appeal granted.
- Appeal upheld; sentences imposed in the District Court quashed.
- In substitution, the following sentences imposed:
- Count 1 (attempted robbery): Fixed term of three years imprisonment, commencing 10 May 1999 and expiring 9 May 2002. No non-parole period set, in light of the accumulated sentence on Count 2.
- Count 2 (robbery): Term of five years imprisonment, commencing 10 May 2002 and expiring 9 May 2007, with a non-parole period of three years commencing 10 May 2002 and expiring 9 May 2005.
Key Takeaways
- A sentencing judge is not required to specify the degree by which each subjective circumstance reduces a penalty, and the Court of Criminal Appeal confirmed it would be wrong to do so.
- Under the principle established in Pearce v The Queen and applied in R v Itamua, separate assessment of the criminality involved in each of multiple offences is required before the principle of totality is applied to moderate the overall result.
- The principle of totality operates to prevent the aggregate of accumulated sentences from exceeding what is proportionate to the total criminality, even where each individual sentence is otherwise justified.
- Accumulation of consecutive sentences can itself constitute a "special circumstance," warranting a non-parole period on a later sentence that is less than three-quarters of its head sentence.
- Armed robbery targeting persons in isolated, vulnerable occupations, such as service station attendants working alone at night, has consistently attracted deterrent sentences in the Court of Criminal Appeal.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1914 (Cth)
Cases:
- Pearce v The Queen (1999) 198 CLR 111
- R v Itamua [2000] NSWCCA 502
- R v Thompson and Houlton [2000] NSWCCA 502
- R v Flemming [1999] NSWCCA 142
- R v Thawaites (unreported, NSWCCA, 6 October 1993)
- R v PPB [1999] NSWCCA 360
- AB v The Queen (1999) 198 CLR 111