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Court of Criminal Appeal 1 February 2002

Regina v Andrews

[2002] NSWCCA 18

Theft & propertyPublic order & justice offences
CRIMINAL LAW AND PROCEDURE SENTENCE ASSISTANCE TO AUTHORITIES PARTICULAR CIRCUMSTANCES RESENTENCE APPROPRIATE

Citation: Regina v Andrews [2002] NSWCCA 18
Court: New South Wales Court of Criminal Appeal
Date: 1 February 2002
Judge(s): Grove J, Ipp AJA, Dowd J

Background

The appellant was sentenced in the Newcastle District Court in December 2000 after pleading guilty to six counts: four of being an accessory after the fact to robbery, and two of robbery as a principal in the second degree. The offences, committed between December 1999 and January 2000, involved a series of armed robberies of retail outlets. The appellant's primary role was as getaway driver, with the principal offender entering premises and committing the actual robberies.

At sentencing, the appellant indicated for the first time that she was willing to give evidence against her co-offenders. The sentencing judge acknowledged this offer but treated it with considerable caution, noting it remained uncertain whether she would follow through. He nonetheless gave it some weight. The sentences imposed were four years and six months imprisonment with a two-year non-parole period on the robbery counts, and twelve-month fixed terms on the accessory counts.

The appellant sought leave to appeal against the severity of sentence, raising several grounds. The Court of Criminal Appeal found most grounds unpersuasive but allowed the appeal on the basis that the actual value of the appellant's assistance to authorities had proven substantially greater than could have been assessed at the time of the original sentence.

  • Whether the sentencing judge gave adequate weight to the appellant's voluntary disclosure of guilt
  • Whether the failure to quantify the guilty plea discount constituted an error
  • Whether the sentences were disproportionate when compared to those of co-offenders
  • Whether the failure to backdate the sentence to account for pre-bail custody was an error
  • Whether the subsequent, demonstrated value of the appellant's assistance to authorities warranted resentencing

Decision

The Court dismissed all grounds except the last. On voluntary disclosure of guilt, Grove J found that, while the sentencing judge had not expressly referenced it, the overall mildness of the sentences strongly indicated that full weight had been given to it. The failure to quantify the guilty plea discount was similarly not an error in itself, consistent with the Court of Criminal Appeal's own authority that a discount need not be stated explicitly.

On the co-offender comparison ground, the Court rejected the suggestion of any justified sense of grievance. The principal offender's non-parole period was approximately two and a half times that of the appellant, a result the Court considered arithmetically and logically consistent with the relative degrees of involvement. The de facto husband received a shorter sentence, but he had participated in only two of the six offences.

The Court accepted the final ground. By the time of the appeal, and with the Crown's consent to the tendering of new information, it was established that the appellant had in fact given substantive assistance to authorities. She had provided a statement, agreed to give evidence, and the Court concluded her conduct had materially contributed to guilty pleas entered by both co-offenders, sparing the Crown contested trials. This was plainly a more significant contribution than had been possible to assess at sentencing.

The Court also noted that the appellant had suffered a physical attack while in custody, reasonably attributable to her known cooperation with authorities. That made her period of imprisonment more burdensome than the sentencing judge could have anticipated, adding a further basis for the reduction.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences on counts four and five quashed
  • In lieu, concurrent sentences of three years and six months imprisonment imposed on each count, dating from 4 December 2000
  • Non-parole period of one year and six months, expiring 3 June 2002
  • Appellant eligible for release to parole on 3 June 2002

Key Takeaways

  • Where an offender's assistance to authorities was uncertain at the time of sentence but subsequently proves to have been substantial, the Court of Criminal Appeal may permit new information to be tendered (with Crown consent) and resentence accordingly.
  • A sentencing judge's failure to quantify a guilty plea discount or to make express reference to voluntary disclosure does not, without more, establish error on appeal, provided the overall sentence reflects those factors.
  • Comparison with co-offenders' sentences does not automatically give rise to a justified sense of grievance; proportionality depends on the relative degree of each offender's involvement.
  • Where imprisonment proves more onerous than anticipated at sentencing, for example because an offender has been attacked in custody as a consequence of assisting authorities, that additional burden is a relevant consideration on resentencing.
  • In dismissing the backdating ground, the Court confirmed that a sentencing judge's express statement that pre-bail custody has been taken into account is sufficient, even without a formal backdating order.

Legislation and Cases Referenced

Cases:
- R v Thomson & Ors (2000) 49 NSWLR 383 (on the requirement, or absence thereof, to quantify a guilty plea discount)

Legislation: No specific legislation was cited in the provided text.