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Court of Criminal Appeal 26 October 2001

Regina v Martin

[2001] NSWCCA 442

Theft & propertyFirearms & weapons

Citation: Regina v Martin [2001] NSWCCA 442
Court: New South Wales Court of Criminal Appeal
Date: 26 October 2001
Judge(s): Spigelman CJ, Studdert J, Ireland AJ

Background

The respondent was convicted of 21 armed robberies and one attempted armed robbery committed over approximately three months in 1997. He used a consistent method across the offences: holding up pharmacies and, on one occasion, a bank, at what victims believed was gunpoint but was in fact a replica pistol.

The offences were prosecuted in two separate tranches. Judge Armitage sentenced the respondent on 13 of the matters in February 2000, imposing a minimum term of six years with an additional term of two years, commencing October 1997. Judge Dodd then sentenced the respondent on the remaining eight armed robbery counts in July 2000.

The problem was that Judge Dodd imposed sentences identical in length and start date to those already imposed by Judge Armitage. The result was that the eight additional convictions added nothing whatsoever to the respondent's time in custody. The Crown appealed on the ground that the sentences were manifestly inadequate.

  • Whether Judge Dodd erred in imposing sentences for eight armed robberies that were entirely concurrent with, and identical to, an existing sentence, thereby adding no additional punishment for those offences.
  • Whether the principle of totality, properly applied, required some increase in the overall sentence to reflect the respondent's greater criminality across 21 discrete offences.
  • Whether the appropriate remedy was to make the new sentences partly consecutive to the earlier sentences.

Decision

The Court of Criminal Appeal held that Judge Dodd had fallen into appellable error. Imposing sentences that were fully concurrent with, and identical to, the existing sentence meant that the eight additional convictions for serious armed robbery were effectively treated as adding nothing to the respondent's overall culpability. The Court found this conclusion was plainly wrong.

Citing the High Court's decision in Mill v The Queen (1988) 166 CLR 59, the Court confirmed that the proper approach where an offender is sentenced separately for related offences is to ask what the overall sentence would have been had all matters been dealt with at once. The answer to that question, the Court found, could not rationally be the same figure as the sentence for 13 of those offences alone.

The Court also drew on Pearce v The Queen (1998) 194 CLR 110, noting that the High Court had cautioned against collapsing multiple convictions into a single undifferentiated sentence as though the additional offences carried no weight. The fact that the offences formed part of a continuing pattern of criminality did not extinguish the need to reflect the eight additional convictions in the overall penalty.

Ireland AJ, with whom Spigelman CJ and Studdert J agreed, concluded that the appropriate course was to make the new sentences partly concurrent and partly consecutive with those imposed by Judge Armitage, adding 18 months to both the head sentence and the non-parole period. The Court acknowledged that the resulting non-parole period slightly exceeded the standard statutory ratio but affirmed that this was appropriate in the circumstances.

Orders Made

  • Crown appeal allowed.
  • Sentence imposed on 14 July 2000 quashed.
  • Respondent re-sentenced on each count to eight years imprisonment with a six-year non-parole period, to be served partly concurrently and partly consecutively with the sentences imposed on 3 February 2000.
  • Revised sentence to date from 16 April 1999, expiring 15 April 2007.
  • Non-parole period to date from 16 April 1999, expiring 15 April 2005.
  • Upon release to parole, the respondent to be supervised by the Probation and Parole Service of NSW for such portion of the two-year parole period as the supervising officer considers necessary.

Key Takeaways

  • Imposing fully concurrent and identical sentences for additional discrete offences, such that those offences add nothing to the overall penalty, constitutes appellable error in sentencing.
  • The totality principle requires a court sentencing an offender for related offences prosecuted separately to consider what the combined sentence would have been had all matters been dealt with at once, not simply to match an existing sentence.
  • Under Pearce v The Queen, multiple convictions for serious offences must each be given real weight; characterising a series of offences as a single "continuing period of criminality" does not justify treating additional convictions as having no incremental sentencing consequence.
  • Where a sentencing judge has failed to account for additional convictions, the Court of Criminal Appeal confirmed that making the new sentences partly consecutive to the existing sentences is the appropriate mechanism for correcting the error.
  • A non-parole period that slightly exceeds the standard statutory ratio is not automatically impermissible; the Court affirmed it was justified on the particular facts of this case.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act (NSW), s 52(2)

Cases
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen [1998] 194 CLR 110
- R v Wheeler [2000] NSWCCA 34
- R v Itamua [2000] NSWCCA 502
- R v Lemene [2001] NSWCCA 5
- R v Holder and Johnston (1983) 3 NSWLR 247
- R v Todd (1982) 2 NSWLR
- R v Moyse (1988) 38 A Crim R 169