Citation: Regina v Raymond JOHNSON [2001] NSWCCA 517
Court: NSW Court of Criminal Appeal
Date: 12 December 2001
Judge(s): Greg James J; Bell J
Background
The applicant pleaded guilty in the Sydney District Court to five counts of armed robbery (robbery while armed with an offensive weapon) and three counts of robbery. The offences were committed between November 1999 and April 2000, targeting convenience store staff in the inner-western Sydney suburbs of Campsie, Lakemba, Stanmore, and Hurlstone Park. In several instances, the applicant produced a knife and threatened employees; in others, staff who recognised him from prior robberies handed over cash without a weapon being used.
At sentencing in October 2000, the applicant received eleven-year terms with seven-and-a-half-year non-parole periods for each armed robbery count, and concurrent five-year fixed terms for the robbery counts. The sentences were expressed to run concurrently. The applicant had been released on parole for less than a year before the subject offending began, and had an earlier conviction for multiple armed robberies dating from 1992.
The applicant sought leave to appeal against the severity of those sentences, contending that the sentencing judge had erred in principle and that the sentences were individually and cumulatively excessive.
Legal Issues
- Whether the sentencing judge erred by imposing sentences on each count that reflected the global criminality of the series, rather than the criminality of each individual offence, contrary to the principles in Pearce v The Queen (1998) 194 CLR 610
- Whether individual sentences of eleven years with non-parole periods of seven and a half years were excessive for each armed robbery
- Whether the aggregate sentences were manifestly excessive
Decision
The Court accepted the applicant's central submission that the sentencing judge had erred by impermissibly inflating the individual sentences to reflect the overall course of criminal conduct, rather than assessing each offence separately and then using cumulation to address the overall criminality. This was an error of principle in light of Pearce v The Queen, which requires each sentence to reflect the seriousness of the particular offence to which it relates.
The Court found that the appropriate sentence for each of the four earlier armed robberies (counts 4, 5, 6, and 7) was six years imprisonment with a non-parole period of four and a half years, with all four running concurrently from 2 April 2000. The more serious April 2000 offence (count 1), which involved a masked confrontation, a knife held to a victim, and a subsequent street confrontation with the pursuing victim, warranted a higher sentence of eight years. That sentence was made to commence in 2003, creating a meaningful period of cumulation to reflect the overall criminality of the series.
For the three robbery counts (counts 2, 3, and 8), the Court imposed fixed four-year terms running concurrently from 2 April 2000. The Court considered the applicant's subjective circumstances, including the death of his grandmother shortly before the offending, his early guilty pleas, and the psychological material before the sentencing judge, but these did not outweigh the serious nature and pattern of the offending or the applicant's significant prior criminal history.
Orders Made
- Leave granted to appeal against the severity of the sentences
- Appeal allowed; sentences imposed in the District Court quashed
- Count 7 (armed robbery, 5 November 1999): six years imprisonment from 2 April 2000; non-parole period of four years and six months; eligible for parole consideration from 1 October 2004
- Count 6 (armed robbery, 5 December 1999): six years imprisonment from 2 April 2000; non-parole period of four years and six months; eligible for parole from 1 October 2004
- Count 5 (armed robbery, 30 December 1999): six years imprisonment from 2 April 2000; non-parole period of four years and six months; eligible for parole consideration from 1 October 2004
- Count 4 (armed robbery, 15 January 2000): six years imprisonment from 2 April 2000; non-parole period of four years and six months; eligible for parole from 1 October 2004
- Count 1 (armed robbery, 2 April 2000): eight years imprisonment commencing 2 April 2003; non-parole period of four and a half years from 2 April 2003; eligible for parole consideration from 1 October 2007
- Counts 2, 3, and 8 (robbery): fixed terms of four years imprisonment each, commencing 2 April 2000, expiring 1 April 2004
Key Takeaways
- Pearce v The Queen (1998) 194 CLR 610 requires each sentence in a series to reflect the individual seriousness of the offence to which it relates; overall criminality is then addressed through appropriate cumulation rather than by inflating individual terms.
- The District Court erred by imposing eleven-year concurrent terms on each armed robbery count, effectively using each individual sentence as a proxy for the entire course of offending, which inverted the correct sentencing methodology.
- Where multiple offences are sentenced together, the proper approach is to fix an appropriate sentence for each offence individually and then apply partial or full cumulation to ensure the total reflects the overall gravity of the conduct.
- Partial cumulation was the mechanism the Court of Criminal Appeal used here: four counts ran fully concurrently from April 2000, while the most serious count commenced three years later, producing a structured and principled total sentence.
- An early guilty plea and genuine subjective circumstances, including grief and psychological difficulty, remain relevant mitigating factors but do not override the need for proportionate sentences in cases involving a pattern of armed robbery by an offender with a directly relevant prior criminal history.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW)
- Crimes Act 1900 (NSW), ss 94, 97
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Pearce v The Queen (1998) 194 CLR 610
- Regina v Thomson and Houlton [2000] NSWLR 49, 383