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Court of Criminal Appeal 14 February 2002

Regina v Drollett

[2002] NSWCCA 13

Assault & violenceTheft & propertyFirearms & weapons

Citation: Regina v Drollett [2002] NSWCCA 13
Court: NSW Court of Criminal Appeal
Date: 14 February 2002
Judge(s): Mason P, Sully J, Levine J

Background

The respondent, a young offender, pleaded guilty in the District Court at Campbelltown to ten counts arising from a series of armed robberies committed over approximately one month in late 2000. The offences were carried out in company with associates against service stations in the late hours of the night. They involved stolen vehicles, weapons including a semi-automatic assault rifle, knives, and a pistol, and included the robbery of console operators on a personal level as well as the taking of cash and cigarettes from the premises.

The sentencing judge also took into account a further fourteen offences under s 32 of the Crimes (Sentencing Procedure) Act 1999, including additional armed robberies and, notably, a common assault committed at the Downing Centre while the respondent was present as a witness. The respondent had been on day release from a juvenile detention centre when the offending began and had resumed heroin use shortly after his release.

Her Honour Judge Gibb imposed ten individual sentences but structured them all to run concurrently. The resulting effective custodial exposure was a maximum period of five years six months, with an effective non-parole period of approximately four years and one month.

  • Whether the District Court correctly applied the sentencing principle of totality when ordering all ten sentences to be served concurrently.
  • Whether the resulting aggregate sentence was justifiable given the nature, number, and objective seriousness of the offences.

Decision

The Crown appeal did not challenge each individual sentence on its own terms. Rather, the Crown's sole contention was that ordering all ten sentences to run concurrently produced an aggregate outcome that could not be justified by a correct application of the totality principle. The totality principle requires a sentencing court to ensure that the overall sentence reflects the total criminality of the offending, neither crushing the offender with a disproportionate sentence nor producing an outcome so lenient that it fails to reflect the full gravity of the conduct.

Sully J, with whom Mason P and Levine J agreed, upheld the appeal. His Honour found that the complete concurrency of all ten sentences was not a proper exercise of the totality principle on the facts. The sheer volume and gravity of the offending, including the use of a military-style assault rifle on one occasion and knives and a pistol on others, and the sustained nature of the criminality across multiple separate incidents, demanded a sentencing structure that better reflected the cumulative seriousness of the conduct.

The Court resentenced the respondent, maintaining the individual sentence components largely in line with what the District Court had assessed but restructuring the commencement dates of key sentences to create a measure of cumulation. This produced a longer effective period of imprisonment than the District Court's purely concurrent approach had allowed.

Notably, the Court also directed its Registrar to contact the Commissioner for Corrective Services with a series of recommendations about the respondent's management in custody. These recommendations addressed classification, access to youth-specific programs, educational opportunities, family contact, and drug and alcohol treatment, reflecting the respondent's youth and the court's concern for his rehabilitation.

Orders Made

  • The Crown appeal was upheld.
  • All sentences passed in the District Court were quashed.
  • The respondent was resentenced to imprisonment on each of the ten counts, with staggered commencement dates producing cumulation across the sentences. The key terms imposed were:
  • Count 1 (armed robbery with assault rifle): 5 years 3 months, commencing 12 December 2000; non-parole period of 3 years 6 months.
  • Count 2: 4 years 6 months, commencing 12 December 2000; non-parole period of 3 years.
  • Count 4: 4 years 10 months, commencing 12 March 2001; non-parole period of 3 years 3 months.
  • Count 5: 4 years 10 months, commencing 12 March 2001; non-parole period of 3 years 3 months.
  • Counts 6, 7, and 8: each 4 years 10 months, commencing 12 June 2001; non-parole period of 3 years 3 months.
  • Count 9: 5 years 6 months, commencing 12 September 2001; non-parole period of 3 years 8 months.
  • Count 10: 4 years 6 months, commencing 26 July 2001; non-parole period of 3 years.
  • Count 11: 4 years 6 months, commencing 12 June 2003; non-parole period of 2 years 6 months, expiring 11 December 2005.
  • The Court directed its Registrar to contact the Commissioner for Corrective Services with recommendations regarding the respondent's classification, placement in youth-specific programs, educational opportunities, family contact, and drug and alcohol treatment.

Key Takeaways

  • The totality principle does not automatically justify ordering all sentences to run concurrently, particularly where the volume and gravity of separate offences is substantial. A sentencing court must ensure the aggregate outcome reflects the total criminality, not merely the most serious single count.
  • Where multiple serious armed robbery offences are committed across a series of separate incidents over an extended period, complete concurrency may itself constitute a sentencing error reviewable on Crown appeal.
  • A 25 per cent discount for an early guilty plea, and findings of special circumstances based on a troubled background and drug addiction, did not insulate the overall sentencing structure from appellate intervention where the aggregate result was found to be inadequate.
  • Upholding a Crown appeal on totality grounds does not necessarily require revision of each individual sentence. The Court of Criminal Appeal restructured commencement dates to achieve appropriate cumulation without significantly altering the individual head sentences.
  • The Court of Criminal Appeal's decision illustrates a practice of accompanying resentencing orders with welfare-focused recommendations to the Commissioner for Corrective Services in cases involving young offenders, though these recommendations are not legally binding orders.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61 (common assault), s 97(1) (robbery while armed with an offensive weapon or robbery in company), s 97(2) (robbery while armed with a dangerous weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32 (additional matters taken into account)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Everett v The Queen (1994) 181 CLR 295
- Veen v The Queen [No. 2] (1988) 164 CLR 465