Citation: R v Griffiths [2001] NSWCCA 32
Court: New South Wales Court of Criminal Appeal
Date: 14 February 2001
Judge(s): James J; Whealy J
Background
The appellant had pleaded guilty in the District Court to two counts of armed robbery committed eight days apart at the same Penrith pharmacy in April 1999. On each occasion he produced a knife and demanded sleeping tablets, clearing shelves of Normison tablets. During the first robbery he also took approximately $1,000 in cash. He had stolen a car to travel to the pharmacy for the first offence, and wore a balaclava during the second.
Police identified the appellant through photographic identification and circumstantial evidence in relation to the first robbery. He was charged with that offence and then voluntarily sought a second police interview, in which he admitted to both robberies. He told police he had committed the offences to obtain drugs for his personal use. He had a history of heroin addiction dating from age 14 and a criminal record for dishonesty offences going back to 1981, though with a gap between 1989 and 1994 when he was on a methadone programme. At the time of the offences, he was on parole.
District Court Judge Howie sentenced the appellant to six and a half years imprisonment on the first count, with a minimum term of four years ten months, taking into account a further offence of taking and using a motor vehicle. On the second count, a fixed term of three years was imposed, to be served concurrently. The appellant sought leave to appeal on the ground that the sentences were manifestly excessive.
Legal Issues
- Whether the sentencing judge applied the correct starting point under the armed robbery guideline judgment in R v Henry (1999) 46 NSWLR 346, having regard to the objective features of the offences
- Whether an adequate discount was given for the early pleas of guilty in accordance with R v Thompson; R v Houlton [2000] NSWCCA 309
- Whether an adequate discount was given for the appellant's voluntary disclosure of guilt in relation to the second offence, in accordance with R v Ellis (1986) 6 NSWLR 603
- Whether the overall sentences were manifestly excessive
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. James J (with Whealy J agreeing) held that the sentencing judge had been entitled to characterise both offences as more serious than the baseline category described at paragraph 162 of the Chief Justice's judgment in Henry, for which a sentencing range of four to five years was indicated. The aggravating features were substantial: the appellant was not a young offender, had a long criminal record, was on parole at the time, and had shown some degree of planning in both offences.
On the question of discount for the pleas of guilty, James J noted that the baseline category in Henry already incorporated a plea of guilty as one of its features, albeit a late one. The appellant's pleas were early, and the Court was satisfied the sentencing judge had properly accounted for them. The argument that the starting point was inflated, or that the discounts were inadequate, was not accepted.
Regarding the second offence and the voluntary disclosure, James J confirmed that, consistent with Ellis, the voluntary admission warranted a considerable discount. However, the appellant still had to receive some punishment for a serious offence that police would otherwise have had significant difficulty proving. The sentencing judge had made the full term for the second offence concurrent with part of the minimum term for the first, which appropriately reflected the criminality involved without double-punishing the appellant for his candour.
Orders Made
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that a sentencing court may characterise offences as more serious than the guideline baseline in R v Henry where the offender has a significant criminal history, was on parole at the time of the offences, and demonstrated planning.
- A voluntary confession to a further offence, particularly one the prosecution would have had difficulty proving, warrants a considerable sentencing discount under the principle in R v Ellis, but does not eliminate the need for some punishment for that offence.
- The guideline category in R v Henry at paragraph 162 itself incorporates a guilty plea as a feature, meaning an early plea may still warrant a more generous discount than the guideline range alone suggests, but this must be assessed in context.
- No error was established in the sentencing judge's approach where the effective head sentence reflected both the aggravating objective features and the mitigating factors of the pleas and voluntary disclosure.
- Concurrent sentences can legitimately be structured so that part of the head sentence for the primary offence carries the punishment for a secondary offence to which the accused voluntarily confessed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 154A (taking and using a motor vehicle)
- Sentencing Act 1989 (NSW), s 5(2) (special circumstances)
Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for armed robbery sentencing)
- R v Thompson; R v Houlton [2000] NSWCCA 309 (guideline judgment on discounts for guilty pleas)
- R v Ellis (1986) 6 NSWLR 603 (discount for voluntary disclosure of offending)