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Court of Criminal Appeal 19 July 2001

R v Thompson

[2001] NSWCCA 278

Assault & violenceTheft & propertyFirearms & weapons
SENTENCING APPLICATION OF PRINCIPLE OF TOTALITY OFFENDER AGED 23

Citation: R v Thompson [2001] NSWCCA 278
Court: NSW Court of Criminal Appeal
Date: 19 July 2001
Judge(s): O'Keefe J; Smart AJ

Background

The appellant was 23 years old at the time of sentencing, with a criminal history stretching back to age 12. His offending was closely connected to a longstanding alcohol dependency. He had previously served time for armed robbery with violence and had been released on parole in late 1999, only to reoffend within months.

In late 1999 and early 2000, the appellant committed a series of break, enter and steal offences at commercial premises in Tamworth. On 8 February 2000, he entered a bank branch, armed with a long-bladed knife, jumped the counter, grabbed a female teller and held the knife to her throat while demanding money. He fled with approximately $4,672, of which $4,550 was recovered. The three tellers present were not physically injured but were severely traumatised.

In the District Court, the appellant was sentenced to concurrent fixed terms of two years for two break, enter and steal offences, plus a cumulative ten years (with a seven-year non-parole period) for the armed robbery, resulting in a total effective sentence of twelve years with a nine-year non-parole period. He sought leave to appeal against the severity of the overall sentence.

  • Whether the total effective sentence of twelve years, with a nine-year non-parole period, was excessive having regard to the principle of totality.
  • Whether the sentencing judge gave sufficient weight to the appellant's personal circumstances, including his youth, alcohol dependency, psychological background, and the risk of institutionalisation.
  • Whether the balance between punishment and the prospects of rehabilitation was appropriately struck.

Decision

The Court of Criminal Appeal granted leave to appeal and found that the armed robbery sentence, when viewed cumulatively with the break, enter and steal sentences, produced an aggregate that was too severe. Applying the totality principle (which requires a sentencing court to step back and assess whether the combined effect of cumulative sentences is just and appropriate in all the circumstances), the Court concluded that the armed robbery sentence required reduction.

The Court acknowledged the gravity of the armed robbery and the severe trauma inflicted on the bank tellers. However, it weighed against this the appellant's early guilty pleas, his admissions to police about offences they had not been aware of, and his troubled personal background, including alcohol dependency, a history of self-harm, and genuine psychological difficulties identified in expert reports.

Smart AJ accepted the psychologist's assessment that, without active therapeutic intervention during imprisonment, the appellant's prospects for rehabilitation were poor and his risk of spending most of his life in custody was real. The Court did not treat those circumstances as excusing the conduct, but regarded them as relevant to the correct sentencing disposition.

The sentence for armed robbery was reduced from ten years (non-parole period of seven years) to eight years (non-parole period of five years), commencing cumulatively after the two-year fixed terms. The Court also took the unusual step of directing that its judgment and the psychologist's report be forwarded to Corrective Services to facilitate treatment of the appellant during his imprisonment.

Orders Made

  • Leave to appeal granted.
  • Appeal against the two-year fixed terms for break, enter and steal (Counts 1 and 2) dismissed; those sentences upheld.
  • Appeal against the ten-year armed robbery sentence (with seven-year non-parole period) allowed; that sentence quashed.
  • In substitution, the appellant was sentenced to eight years imprisonment commencing 8 February 2002, with a non-parole period of five years ending 7 February 2007.
  • The Court directed that a copy of the judgment and the psychologist's report by Ms J. Devlin (dated 5 April 2001) be sent to Corrective Services to facilitate the appellant's treatment.

Key Takeaways

  • The totality principle requires a sentencing court to consider the cumulative effect of consecutive sentences and to reduce individual sentences where the aggregate is disproportionate to the overall criminality involved.
  • A conviction for serious offences such as armed robbery does not preclude a court from adjusting the sentence downward on totality grounds when cumulative sentences produce an unjust overall result.
  • Mitigating factors such as early guilty pleas, voluntary disclosure of offences unknown to police, youth, alcohol dependency, and psychological vulnerability are capable of reducing what would otherwise be a lengthier sentence, even in the context of serious violence.
  • The risk of a young offender becoming institutionalised was expressly acknowledged by the Court of Criminal Appeal as a relevant consideration, particularly where the offender had not previously received adequate treatment for underlying psychological and dependency issues.
  • Directing that sentencing materials be forwarded to Corrective Services to facilitate therapeutic intervention is a step available to the Court of Criminal Appeal, though it appears to have been used here in response to the specific and documented treatment needs of this offender.

Legislation and Cases Referenced

Cases:
- R v Henry and Barber (1999) 46 NSWLR 346
- R v Itamua [2000] NSWCCA 502

Legislation: No specific legislation was cited in the judgment text provided.