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Court of Criminal Appeal 4 July 2001

R v Haines

[2001] NSWCCA 256

Assault & violenceTheft & propertyFirearms & weapons

Citation: R v Haines [2001] NSWCCA 256
Court: NSW Court of Criminal Appeal
Date: 4 July 2001
Judge(s): Studdert J; McClellan J

Background

The applicant pleaded guilty in the District Court at Sydney to aggravated armed robbery, an offence carrying a maximum penalty of 25 years imprisonment under the Crimes Act. The offence involved the applicant and a co-offender calling a taxi in Tamworth in the early hours of the morning for the express purpose of robbing the driver. During the robbery, the applicant held a knife to the driver's throat, inflicting a laceration approximately seven centimetres in length. The stolen property was a coin dispenser containing just under $50.

District Court Judge Black QC sentenced the applicant to four years imprisonment with a non-parole period of three years, commencing from the date she was first taken into custody. The applicant did not challenge the overall length of the sentence.

The sole ground of appeal was that the sentencing judge erred by declining to find "special circumstances" under the Crimes (Sentencing Procedure) Act 1999, which would have justified a shorter non-parole period and a correspondingly longer period of supervised parole.

  • Whether the sentencing judge erred by failing to find special circumstances warranting a departure from the standard ratio between the non-parole period and the overall sentence under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no appellable error in the sentencing judge's exercise of discretion.

The Court noted the objective seriousness of the offence: it involved a knife, the actual infliction of bodily injury, and a vulnerable victim in the form of a taxi driver, a category of victim the courts have long recognised as deserving particular consideration. Against that objective gravity, the sentencing judge had regard to a range of subjective factors, including the applicant's Aboriginal background, her history of substance abuse, her prior criminal record (though this was her first armed robbery and first substantial custodial sentence), and reports from both a probation and parole officer and a psychologist.

The Court observed that the two reports pointed in notably different directions. The probation and parole officer recorded that the applicant's antisocial lifestyle was well entrenched and found no evidence she was seeking to change. The psychologist's report was comparatively more optimistic, identifying some insight and rehabilitative potential. The applicant gave no evidence on sentence, leaving these competing assessments unresolved by direct testimony.

Whether special circumstances existed to warrant a different structure was a matter of discretion for the sentencing judge. The Court held it was open to the judge to find that the 12-month parole tail afforded by the existing structure provided sufficient supervision, and that no special circumstances had been established. The sentence was not disturbed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The determination of whether "special circumstances" exist under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 involves a discretion vested in the sentencing judge, not a threshold question subject to de novo review on appeal.
  • No error was established simply because expert reports placed before the sentencing court pointed in conflicting directions; the weight to be given to competing materials is a matter for the sentencing judge.
  • An applicant's decision not to give evidence on sentence is a relevant consideration, particularly where the written reports before the court are in tension with one another.
  • In dismissing the appeal, the Court of Criminal Appeal reinforced that taxi drivers are recognised as a vulnerable category of victim, a factor that bears on the objective seriousness of armed robbery offences involving them.
  • A 12-month period of parole supervision was, on the facts of this case, open to be regarded as sufficient to meet any rehabilitative need, even where psychological evidence pointed to some potential for rehabilitation.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 96
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- R v Henry (1999) 46 NSWLR 347
- R v Fernando (1992) 76 ACrimR 58
- R v GDR (1994) 35 NSWLR 376
- R v Hampton (unreported, NSWCCA, 25 June 1998)