Citation: Regina v PG [2001] NSWCCA 231
Court: New South Wales Court of Criminal Appeal
Date: 20 June 2001
Judge(s): Howie J; Smart AJ
Background
The applicant pleaded guilty in the District Court to six counts of armed robbery under s 97(1) of the Crimes Act 1900, and asked the sentencing judge to take into account a further ten armed robbery matters and one unlicensed driving matter on a Form 1. The offences were committed over a period of approximately seven weeks in 1999 and involved the applicant and co-offenders targeting licensed clubs and retail premises, yielding over $80,000 from the indictment counts alone. The applicant was armed with a replica pistol; co-offenders used a tomahawk and stole vehicles to carry out and escape the robberies.
Following his arrest, the applicant cooperated extensively with police. He provided detailed information about all sixteen robberies in recorded interviews, and gave further assistance described in a confidential annexure to the judgment. This cooperation had significant consequences: the applicant's family received threats, his wife was assaulted, and both he and his family required police protection.
At first instance, O'Reilly DCJ imposed concurrent sentences of 7.5 years with non-parole periods of 5 years on each count, applying a 50 per cent discount from a starting point of 15 years. The applicant sought leave to appeal, arguing the discount was inadequate and that insufficient weight had been given to the danger faced by his family.
Legal Issues
- Whether the sentencing judge erred by not following the approach required by the High Court in Pearce v The Queen (1998) 194 CLR 610 when imposing concurrent sentences
- Whether the overall discount of 50 per cent for assistance to authorities and disclosure of unknown criminality was adequate in the circumstances
- Whether the non-parole period adequately accounted for the ongoing risk to the applicant's family arising from his cooperation with police
- Whether the non-parole period should be reduced to allow the family to be resettled under a witness protection scheme or relocated
Decision
The Court of Criminal Appeal granted leave to appeal and allowed it on two bases. First, both parties accepted that O'Reilly DCJ had not followed the Pearce methodology, which requires a sentencing judge to fix an appropriate sentence for each individual offence before arriving at a total sentence that reflects the overall criminality. Sentences on counts two to six were also found to be manifestly excessive in their own right, independently of any question about the first count.
On the question of the discount, the Court accepted that the applicant's assistance was, as the sentencing judge himself described it, "quite extraordinary." Police had no evidence connecting the applicant to fourteen of the sixteen robberies, and the evidence on the remaining two was weak. The Court's reasoning on the exact level of discount is not fully reproduced in the available text, but the Court determined a reassessment was warranted.
The Court placed particular weight on the danger faced by the applicant's family as a result of his cooperation. New affidavit material from the applicant's wife made clear that the family could not realistically enter a witness protection scheme or relocate while the applicant remained in custody, because maintaining contact with him created a practical barrier to protection. Howie J concluded that the sentencing judge had given insufficient weight to this factor, and that it justified reducing the non-parole period further.
Howie J specified a non-parole period of 4 years for the first count (incorporating the Form 1 matters), and fixed terms of 3.5 years on counts two to six, structured to run concurrently. Smart AJ agreed with Howie J.
Orders Made
- Leave to appeal granted and appeal allowed
- Sentences on counts two to six quashed; in lieu, a fixed term of 3.5 years imposed on each, commencing 16 August 1999 and expiring 15 February 2003
- Non-parole period on count one quashed; in lieu, a non-parole period of 4 years specified, expiring 15 August 2003, being the date of eligibility for parole
Key Takeaways
- The Court of Criminal Appeal confirmed that a sentencing court must follow the Pearce v The Queen methodology: fix an appropriate sentence for each individual offence, then adjust for totality by making sentences concurrent or cumulative, rather than working backwards from a global term.
- A sentencing discount for assistance to authorities must genuinely reflect the nature and extent of that assistance; where the assistance is exceptional, a discount of 50 per cent may still be inadequate.
- Under established authority including R v C (1994) 75 A Crim R 309, the risk to an offender and their family arising from cooperation with police is a legitimate factor in determining whether a non-parole period is disproportionate to the seriousness of the offence.
- Where an informant's family cannot realistically enter a witness protection scheme or relocate while the offender remains in custody, those practical barriers can constitute special circumstances justifying a reduced non-parole period.
- Appellate courts will re-sentence even where the total sentence might not have caused actual prejudice to the applicant, provided there was a legal error in the sentencing process.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Justices Act 1902 (NSW), s 51A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 32, 44
Cases
- Pearce v The Queen (1998) 194 CLR 610
- R v Ellis (1986) 6 NSWLR 603
- R v Thompson and Houlton (2000) 49 NSWLR 383
- R v C (1994) 75 A Crim R 309
- R v Gallagher (1991) 23 NSWLR 220
- R v Bavadra (2000) 115 A Crim R 152
- R v Carrion (1999) 49 NSWLR 149
- Dodd (1991) 57 A Crim R 349
- Phelan (1993) 66 A Crim R 446
- R v Chu (NSWCCA, unreported, 16 October 1998)
- R v Huang (NSWCCA, unreported, 5 April 1995)
- R v S [2000] NSWCCA 13