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Court of Criminal Appeal 28 March 2001

R v ROBERTSON

[2001] NSWCCA 95

Assault & violenceTheft & propertyPublic order & justice offences

Citation: R v Robertson [2001] NSWCCA 95
Court: NSW Court of Criminal Appeal
Date: 28 March 2001
Judge(s): Studdert J, Barr J

Background

The applicant, a co-offender in a series of armed robberies committed over two days in June 1998, pleaded guilty in the District Court to four counts arising from attacks on multiple victims in western Sydney. The offences included robbery in company and robbery whilst armed, and involved violence against victims ranging from a 13-year-old schoolboy to elderly pensioners. A co-offender, who faced a charge of robbery in company causing grievous bodily harm, received marginally heavier sentences overall.

The sentencing judge took into account seven further offences under the Crimes (Sentencing Procedure) Act 1999. The applicant was sentenced to a total effective head sentence of eight and a half years, comprising a fixed term of four years (on the count related to one seriously injured victim) accumulated with sentences of four and a half years on each of the remaining three counts, producing a minimum term of six years and an additional term of two and a half years.

The applicant sought leave to appeal, contending that the sentences were manifestly excessive and that the sentencing judge had failed to give adequate weight to certain mitigating factors.

  • Whether the sentencing judge gave adequate weight to the applicant's plea of guilty, particularly in relation to the count concerning the seriously injured victim, Mr Ravasia, given that the plea and police interview were said to have been essential to the Crown's case on that count.
  • Whether the applicant had a justifiable grievance arising from the small sentencing disparity between himself and his co-offender, who was convicted of a more serious offence carrying a higher maximum penalty.
  • Whether the overall head sentence and minimum term were outside the proper range of the sentencing judge's discretion, having regard to the applicant's background, including a difficult and abusive childhood.

Decision

On the first ground, Barr J rejected the submission that the sentencing judge had insufficiently credited the guilty plea to the Ravasia count. The count attracting the fixed term of four years was the vehicle through which the judge also took into account the applicant's criminality across seven additional offences, each of which involved a substantial Crown case. Viewed in that context, the resulting sentence did not indicate that the plea of guilty had been inadequately recognised.

On the disparity ground, the Court accepted that a comparison with the co-offender's sentences was relevant. However, the co-offender faced a charge carrying a maximum penalty of 25 years (robbery in company causing grievous bodily harm), compared to the applicant's maximum of 20 years for robbery in company. The difference in the sentences on the Ravasia-related count reflected that difference in culpability and maximum penalty, and no justifiable sense of grievance arose.

On the background and totality ground, the Court acknowledged that the sentencing judge had expressly considered the applicant's disturbed childhood and his father's abusive behaviour. Those matters had in fact led the judge to extend the additional term beyond one-third of the effective minimum term. The Court found the overall head sentence and minimum term were within the proper exercise of the sentencing discretion, and that the two and a half year parole period was adequate to provide the supervision the applicant required.

No error on the sentencing judge's part was demonstrated, and the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that where a sentencing judge takes multiple additional offences into account on a single count, the resulting sentence must be assessed in light of the total criminality being addressed, not only the principal count in isolation.
  • A guilty plea to a count on which the Crown's case might otherwise have been weak does not automatically generate a substantial discount where that same count is used as the vehicle to reflect a broader pattern of offending on which the Crown held strong evidence.
  • Sentencing disparity between co-offenders is a recognised consideration, but a difference in maximum penalties applicable to each offender's respective charges can justify a corresponding difference in the sentences imposed.
  • Personal hardship and a difficult upbringing are mitigating factors that may legitimately influence the structure of a sentence (such as the ratio between minimum and additional terms) without necessarily reducing the overall head sentence.
  • No error was established in the sentencing judge's approach, affirming that appellate intervention requires more than a submission that a different exercise of discretion was available.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
No specific cases were cited in the portions of the judgment provided.