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Court of Criminal Appeal 10 December 2001

REGINA v. COSIER

[2001] NSWCCA 513

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW APPEAL SENTENCE ARMED ROBBERIES PRINCIPLES IN R. V. HENRY DISCOUNT FOR PLEA

Citation: [2001] NSWCCA 513
Court: NSW Court of Criminal Appeal
Date: 10 December 2001
Judge(s): Greg James J; Whealy J

Background

The appellant was sentenced in the District Court for a series of serious armed robberies committed in the Blue Mountains region of NSW, including the robbery of a restaurant conference centre and a golf club, as well as a conspiracy to rob the manager of the Katoomba Sky Way. The offending involved disguises, shortened firearms, the binding of staff, and, in one instance, a co-offender striking a staff member causing significant bleeding. The applicant had also harboured a prison escapee, the co-offender in two of the robberies, at his home for an extended period.

Eight additional offences, including six further armed robberies and two motor vehicle larcenies, were listed on a Form 1 (a document recording related offences to be taken into account when passing sentence, rather than charged separately). The District Court imposed an effective total term of approximately 10 years and five months, with a non-parole period of around seven years and five months to be served.

The appellant sought leave to appeal against the sentences, arguing they were manifestly excessive and that insufficient account had been taken of his cooperation with police, his guilty plea, and comparable sentences imposed in other cases.

  • Whether the sentencing judge correctly applied the principles from R v Henry (1999) concerning armed robbery sentencing
  • Whether sufficient discount was given for the appellant's early disclosure of his offending and cooperation with police
  • Whether the Form 1 offences, being related to the same course of conduct, should have produced only a marginal increase in the overall sentence
  • Whether the sentences were manifestly excessive when compared to sentences imposed in other comparable cases

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds. Greg James J, with Whealy J agreeing, found that the sentencing judge had conducted an extensive and detailed review of all relevant considerations, properly taking into account the appellant's cooperation, admissions, and expressions of remorse.

On the question of the Form 1 offences, the Court acknowledged the submission that those offences were sufficiently related to the indictment charges, concerning as they did variations in victims rather than entirely separate criminal enterprises. However, the Court was not persuaded that the sentencing judge had erred in the weight given to those matters.

Regarding manifest excess, the Court applied the established principle that a sentence must clearly and obviously exceed what is appropriate before it can be set aside on this ground. The mere identification of other cases with lower sentences does not establish inconsistency sufficient to constitute error; the court examined the cases cited (Lemene, Jolley, and Fleming) but found they did not demonstrate that the sentences imposed here carried the badge of impermissible inconsistency.

Greg James J concluded that while the sentences were substantial, the crimes were exceedingly grave. The purposes and principles of sentencing had been properly applied, and the sentences, including the non-parole periods, fell within the permissible range of sentencing discretion.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentence will only be set aside as manifestly excessive where it so clearly exceeds what is appropriate as to fall outside the bounds of a permissible exercise of sentencing discretion; substantial sentences for grave crimes will not ordinarily meet this threshold.
  • Citing other cases with lower sentences does not automatically establish error; a court must be satisfied that the comparison reveals impermissible inconsistency of the kind described in Lowe v The Queen (1984) 154 CLR 606.
  • Where offences on a Form 1 arise from a related course of criminal conduct, that connection may be relevant to the degree of additional culpability they attract, but it does not preclude the sentencing court from treating them as adding meaningfully to overall criminality.
  • Cooperation with police, disclosure of offending, guilty pleas, and expressions of remorse are all relevant mitigating factors, but they do not necessarily reduce sentences to a level that overrides the objective gravity of serious armed robbery offending.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the non-parole period, as well as the head sentence, must independently fall within the permissible range and is itself susceptible to appellate review.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including s 97(2) (robbery whilst armed with a dangerous weapon)
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v Henry & Ors (1999) 46 NSWLR 346
- R v Cartwright (1989) 17 NSWLR 243
- R v Ellis (1986) 6 NSWLR 603
- R v Rushby (1977) 1 NSWLR 594
- Pearce v The Queen (1998) 194 CLR 610
- R v Pont [2000] NSWCCA 419
- House v The King (1936) 55 CLR 299
- R v Lemene [2001] NSWCCA 5
- R v Jolley [2000] NSWCCA 69
- R v Fleming [1999] NSWCCA 142
- Lowe v The Queen (1984) 154 CLR 606