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Court of Criminal Appeal 4 July 2001

REGINA v WALTERS

[2001] NSWCCA 265

Fraud & dishonesty
SENTENCING APPEAL AGAINST SENTENCE S 100 CRIMES ACT 1900 LETTERS DEMANDING MONEY WITH MENACES SIGNIFICANT LEVEL OF CRIMINALITY

Citation: Regina v Walters [2001] NSWCCA 265
Court: New South Wales Court of Criminal Appeal
Date: 4 July 2001
Judge(s): McClellan J, Studdert J

Background

The applicant pleaded guilty to a charge of demanding money by letter with menaces, contrary to section 100 of the Crimes Act 1900, carrying a maximum penalty of ten years' imprisonment. The offence involved entering a bank branch, passing a threatening note to a trainee teller demanding money, and gesturing toward a backpack in a manner that caused the teller to fear for her life. The teller activated a security screen and the applicant obtained nothing.

The offence was committed shortly after the applicant's release from custody, during a period in which his methadone reduction program had broken down. Upon release, a local drug service was unable to refer him to a methadone prescriber, and he relapsed into heroin dependence. The sentencing judge in the District Court, Coleman DCJ, imposed a total term of three years with a non-parole period of two years, dating from 28 July 2000.

The applicant sought leave to appeal out of time, submitting that the sentence was manifestly excessive. The delay was attributed to advice from his former solicitor against appealing.

  • Whether the sentencing judge gave insufficient weight to the applicant's inability to access methadone treatment during the period in which the offences were committed
  • Whether the non-parole period of two years was excessive, particularly when compared to non-parole periods imposed in armed robbery cases
  • Whether leave to appeal out of time should be granted

Decision

The Court of Criminal Appeal, in a judgment delivered by McClellan J (with Studdert J agreeing), found no error in the approach taken by Coleman DCJ. The sentencing judge had acknowledged the applicant's heroin addiction, his cooperation with police, his early guilty plea, his contrition, and his demonstrated willingness to engage with rehabilitation. The sentencing judge had also specifically considered the breakdown of the methadone program and the applicant's unstable circumstances at the time of the offences. The Court found these matters had been properly weighed.

The Court applied the principles in R v Henry (1999) 46 NSWLR 346, confirming that drug addiction is a relevant circumstance in sentencing but is not in itself a mitigating factor. The applicant's submission that the methadone program's failure should have attracted greater leniency was therefore rejected.

On the statistics-based argument regarding the non-parole period, the Court noted that the impact of the offence on the bank teller was consistent with that of an armed robbery. The degree of criminality involved was greater than many offences under sections 99 or 100 of the Act, and the applicant's lengthy criminal history and pattern of reoffending during conditional release were significant aggravating features.

The Court concluded that the sentence, including the non-parole period, was well within the sentencing judge's discretion and that no occasion for appellate intervention arose.

Orders Made

  • Leave to appeal granted
  • Appeal refused

Key Takeaways

  • Under R v Henry (1999) 46 NSWLR 346, drug addiction is relevant to the sentencing exercise but does not, of itself, operate as a mitigating factor.
  • A sentencing court's failure to give greater weight to an offender's lack of access to methadone treatment will not constitute error where the court has already acknowledged that circumstance in its reasoning.
  • Comparing non-parole periods to those imposed in a different but related category of offence (such as armed robbery) does not automatically establish that a sentence is excessive, particularly where the facts and criminality are comparable.
  • In dismissing the appeal, the Court of Criminal Appeal emphasised that the serious psychological impact of a demanding-with-menaces offence on the victim is a weighty sentencing consideration.
  • An applicant's lengthy criminal history and repeated reoffending during conditional liberty are relevant factors that justify a more significant sentence, even where mitigating circumstances such as addiction and rehabilitation efforts are present.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 99, 100 (demanding money with menaces), 117 (larceny)

Cases:
- R v Henry (1999) 46 NSWLR 346