Citation: [2001] NSWCCA 240
Court: NSW Court of Criminal Appeal
Date: 27 June 2001
Judge(s): Barr J, Howie J
Background
The applicant was sentenced in the District Court on 14 July 2000 to five years' imprisonment with a three-year non-parole period after pleading guilty to armed robbery. The offence involved entering a shop at North Strathfield, producing a knife when the proprietor opened the till, and escaping with approximately $100. The proprietor sustained superficial injuries during a struggle.
The applicant had an extensive criminal history, including a prior conviction for demanding money with menaces and assault, and was on bail at the time of the offence. He also had a long history of drug abuse, including heroin addiction requiring around $300 per day to sustain.
The applicant appeared unrepresented before the Court of Criminal Appeal and sought leave to appeal against his sentence on several grounds, including complaints about the conduct of his legal representation and alleged errors of fact by the sentencing judge.
Legal Issues
- Whether the applicant's barrister at the sentencing hearing provided inadequate representation, in particular by declining to call the applicant to give evidence and by failing to convey his remorse to the court
- Whether the sentencing judge made material errors of fact when imposing sentence
- Whether post-sentence developments, including claimed rehabilitation, could be taken into account by the Court of Criminal Appeal in the absence of demonstrated sentencing error
Decision
The Court rejected the complaint about legal representation. Barr J noted that there was no evidence supporting the applicant's assertions about what occurred between him and his barrister, and the applicant had not obtained evidence from the barrister himself. The barrister was a practitioner of long experience, and nothing in the facts of the case suggested the applicant should not be bound by the manner in which his case was conducted.
On the question of remorse, the Court observed that experienced barristers routinely weigh whether to call their clients to give evidence, particularly where doing so would expose them to cross-examination before a sentencing judge. The absence of any oral expression of remorse before the sentencing judge was a matter squarely within the barrister's professional judgment.
The applicant's complaints about factual errors by the sentencing judge were each considered and dismissed as either supported by the material before the court or inconsequential to the outcome. The Court found no error in the sentencing judge's reasons.
Finally, the Court addressed the applicant's claims about post-sentence rehabilitation and adverse prison incidents. Barr J explained clearly that the Court of Criminal Appeal is not a sentencing court and can only re-sentence if error is established by the sentencing judge. Since no error was demonstrated, those subsequent matters could not be taken into account.
Orders Made
- Leave to appeal against sentence granted
- Appeal dismissed
Key Takeaways
- No error was established in the sentencing judge's exercise of discretion, and the five-year sentence with a three-year non-parole period for armed robbery was within the proper sentencing range.
- A conviction for inadequate legal representation requires more than bare assertion by an applicant; the Court of Criminal Appeal will not disturb a sentence on that basis without evidence, particularly where the barrister was experienced in criminal practice.
- Decisions by defence counsel not to call a client to give evidence at a sentencing hearing fall within ordinary professional judgment and do not, without more, constitute a ground of appeal.
- The Court of Criminal Appeal confirmed that it exercises a supervisory appellate function, not a fresh sentencing function; post-sentence developments such as rehabilitation cannot be considered unless sentencing error is first established.
- Minor factual inaccuracies in a sentencing judge's remarks will not ground a successful appeal unless they are shown to have materially affected the sentence imposed.
Legislation and Cases Referenced
No specific legislation or cases were cited in the text of the judgment as provided. The decision refers generally to principles of sentencing discretion and the function of the Court of Criminal Appeal in New South Wales.