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9
Court of Criminal Appeal 21 August 2001

R v Hoschke

[2001] NSWCCA 317

Assault & violenceTheft & property
SENTENCING CROWN APPEAL ALLEGED INADEQUACY OF SENTENCE YOUNG OFFENDER ROBBERY IN COMPANY OFFENDER

Citation: R v Hoschke [2001] NSWCCA 317
Court: New South Wales Court of Criminal Appeal
Date: 21 August 2001
Judge(s): Beazley JA, Wood CJ at CL, Carruthers AJ

Background

The respondent, a then 18-year-old male, pleaded guilty to one count of robbery in company under s 97(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. The offence involved approaching a 15-year-old boy at a bus stop in Sydney with a co-offender, demanding money, threatening to stab the victim, and making off with $15 after the co-offender struck the victim across the face.

The sentencing judge in the District Court imposed two years imprisonment with an 18-month non-parole period, to be served by way of periodic detention. The Crown appealed under s 5D of the Criminal Appeal Act 1912, arguing the sentence was inadequate.

The co-offender, Sharpe, had been sentenced by the same judge to four years full-time imprisonment with a two-year non-parole period. The sentencing judge had assessed the respondent as roughly half as culpable as Sharpe, a finding that became central to the appeal.

  • Whether the sentence of periodic detention was manifestly inadequate for an offence of robbery in company involving threats of stabbing and physical violence against a vulnerable victim.
  • Whether the sentencing judge correctly assessed the respondent's relative culpability compared to the co-offender.
  • Whether there were "exceptional circumstances" within the meaning of R v Henry (1999) 46 NSWLR 346 sufficient to justify a sentence other than full-time custody.
  • What weight should be given to the respondent's youth, subjective circumstances, and plea of guilty in resentencing.

Decision

The Court of Criminal Appeal found that the sentencing judge had made factual errors in assessing the respondent's culpability. Notably, the statement of facts tendered at sentence showed that it was the respondent, not the co-offender, who threatened to produce a knife and stab the victim. Despite that, the sentencing judge attributed the stabbing threat to Sharpe, as he had done when sentencing the co-offender. This led to an incorrect finding that the respondent bore only half the culpability of Sharpe.

The Court found that even accepting the Crown's concessions about the factual errors, the sentence fell well outside the range established in Henry. Under that authority, robbery in company involving actual violence or a weapon threat ordinarily attracts full-time custody absent truly exceptional circumstances. The respondent's youth, vulnerability to self-harm, and emotional volatility were acknowledged but were not sufficient to bring the case within the exceptional circumstances exception.

The Court accepted that special circumstances existed in relation to the non-parole period, given the respondent's youth and the importance of rehabilitation. Accordingly, the non-parole period was set at a shorter proportion of the head sentence than would ordinarily apply. The double jeopardy principle (the additional burden of being resentenced on appeal) was factored into the new sentence.

Separately, the Court noted that the respondent had been held in adult custody despite difficulties arising from his age and circumstances. The Court made an order directing that the fresh sentence be served in a juvenile detention centre, and recommended that the Minister consider transferring the respondent from adult custody for the balance of a concurrent sentence already being served.

Orders Made

  • Appeal allowed.
  • Sentence of Shadbolt DCJ set aside.
  • Respondent resentenced to imprisonment for 2 years and 9 months, commencing 24 February 2001 and expiring 23 November 2003.
  • Non-parole period of 16 months fixed, commencing 24 February 2001 and expiring 23 June 2002.
  • Sentence ordered to be served in a juvenile detention centre pursuant to s 19 of the Children (Criminal Proceedings) Act 1987.
  • Recommendation that the Minister consider making an order under s 10 of the Children (Detention Centres) Act 1987 for the respondent's transfer to a juvenile detention centre for the duration of the sentence imposed at Windsor Local Court on 24 May 2001.

Key Takeaways

  • The Court of Criminal Appeal confirmed that robbery in company involving threats with a weapon falls squarely within the sentencing range in R v Henry, requiring full-time custody unless exceptional circumstances are demonstrated.
  • Where a sentencing judge makes findings of fact about relative culpability that are inconsistent with the agreed statement of facts, that constitutes an error warranting appellate intervention.
  • A finding that one co-offender is "half as culpable" as another does not, of itself, justify a sentence of periodic detention when the objective gravity of the offence remains serious.
  • Youth, emotional vulnerability, and a plea of guilty may support special circumstances justifying a reduced non-parole period, even where they do not displace the need for full-time custody.
  • Under s 19 of the Children (Criminal Proceedings) Act 1987, the Court of Criminal Appeal has power to order that a sentence imposed on resentencing be served in a juvenile detention centre, even where the offender has turned 18 by the time of sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Criminal Appeal Act 1912 (NSW), s 5D (Crown appeal against inadequacy of sentence)
- Children (Criminal Proceedings) Act 1987 (NSW), s 19
- Children (Detention Centres) Act 1987 (NSW), s 10
- Justices Act 1902 (NSW), s 51A

Cases:
- Regina v Henry (1999) 46 NSWLR 346
- Regina v Blackman and Waters [2001] NSWCCA 121
- Regina v Govinden (1999) 106 A Crim R 314