Citation: Regina v Cross [2002] NSWCCA 172
Court: New South Wales Court of Criminal Appeal
Date: 15 May 2002
Judge(s): O'Keefe J; Smart AJ
Background
The applicant pleaded guilty in the Local Court to attempted robbery whilst armed with an offensive weapon, along with a charge of taking and driving a conveyance without the owner's consent. He was committed to the District Court for sentence. The offence arose from an incident in November 1999 in which he entered a newsagency wearing a disguise and threatened a female employee with a syringe filled with a red substance, demanding money. She called out for help and he fled empty-handed.
At sentencing in the District Court, a series of errors converged. The charge cover sheet incorrectly described the offence, the Crown Prosecutor misstated the charge, and the sentencing judge ultimately imposed sentence on the basis that the applicant had committed robbery with an offensive weapon rather than the attempted version of that offence. The judge also applied the guideline judgment in Regina v Henry (which concerned completed armed robbery) as the datum for the sentence, and enlarged the non-parole period to allow for extended parole supervision.
The applicant sought leave to appeal out of time, filing his application approximately eight months after sentence. The Court of Criminal Appeal granted the extension and considered the appeal on its merits.
Legal Issues
- Whether the sentencing judge erred by imposing sentence for the wrong offence, treating the charge as completed robbery rather than attempted robbery.
- Whether the judge misapplied the guideline judgment in Regina v Henry, which addressed completed armed robbery, to a charge of attempted armed robbery.
- Whether the judge erred by enlarging the non-parole period for the stated purpose of providing an extended period of parole supervision.
- Whether the judge gave insufficient weight to the applicant's drug addiction and subsequent rehabilitation efforts.
- Whether the extension of time to appeal should be granted, and whether special circumstances existed to justify departing from the standard non-parole to sentence ratio.
Decision
The Court found that the sentencing judge committed a fundamental error by treating the charge as completed robbery rather than attempted robbery. This error appeared in the judge's opening remarks on sentence and infected the entire sentencing exercise. The Court noted this was not a minor administrative slip but a mistake that was central to fixing the appropriate head sentence, since attempted offences generally attract materially lower sentences than their completed counterparts.
The Court also found error in the application of Regina v Henry, a guideline judgment directed at completed armed robbery. That guideline had no direct application to the offence the applicant had actually committed, and using it as a sentencing datum compounded the original misidentification of the offence.
On the question of enlarging the non-parole period to extend parole supervision, the Court found this approach to be an error. The proper method where supervision on parole is considered desirable is to find special circumstances justifying a reduction in the non-parole period relative to the head sentence, not to inflate the overall term.
Taking into account the applicant's early plea of guilty, his lack of serious prior convictions, his drug addiction and his demonstrable success in rehabilitation, the Court considered that a total sentence of four years was appropriate. It also found that special circumstances existed, warranting a reduction in the non-parole period to half the total sentence rather than the statutory three-quarters ratio. This reflected the applicant's need for a meaningful period of post-release supervision and support.
Orders Made
- Extension of time within which to apply for leave to appeal granted.
- Leave to appeal against the severity of the sentence for attempted armed robbery with an offensive weapon granted; remainder of the application dismissed.
- Appeal against the sentence for that offence allowed and sentence quashed.
- In lieu of the District Court sentence, the applicant sentenced to four years imprisonment commencing 20 July 2000 and ending 19 July 2004.
- Non-parole period fixed at two years, commencing 20 July 2000 and ending 19 July 2002, on which date the applicant became eligible for parole.
Key Takeaways
- Sentencing a person for a more serious offence than the one charged and pleaded to constitutes a fundamental error that cannot stand, even where the distinction arises partly from a mistaken charge cover sheet and submissions from both parties.
- A guideline judgment applies to the specific offence it addresses. Applying the Regina v Henry guideline, which concerns completed armed robbery, to a charge of attempted armed robbery was an error of principle.
- Where extended post-release supervision is considered appropriate, the correct mechanism is to find special circumstances and reduce the non-parole period relative to the head sentence. Enlarging the overall sentence to generate a longer parole tail is not a permissible approach.
- Attempted offences will, in the main, attract sentences that are lower, and often significantly lower, than those imposed for the completed equivalent offence, with each case to be assessed on its own facts.
- Demonstrated rehabilitation from drug addiction, combined with an early guilty plea and limited prior criminal history, can constitute special circumstances sufficient to justify a departure from the standard non-parole to sentence ratio.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases
- Regina v Henry (1999) 46 NSWLR 346 (guideline judgment on armed robbery)
- Regina v Carrion (2000) 49 NSWLR 149
- Regina v Blackman [2001] NSWCCA 121
- Yardley v Betts (1979) 22 SASR 108