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Court of Criminal Appeal 17 June 2002

REGINA v. AVANESS

[2002] NSWCCA 230

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL TWO OFFENCES OF ROBBERY IN COMPANY

Citation: [2002] NSWCCA 230
Court: New South Wales Court of Criminal Appeal
Date: 17 June 2002
Judge(s): Greg James J; Smart AJ

Background

The appellant was an 18-year-old who pleaded guilty in the District Court to two counts of robbery in company under s 97 of the Crimes Act 1900, arising from events on 23 May 2001 at Frenchs Forest. Together with two juvenile co-offenders and a driver, the appellant and his companions cruised suburban streets looking for victims to rob at random. Two separate young men were targeted within the space of roughly 15 minutes, each subjected to punching and kicking before having their property taken.

The District Court sentenced the appellant to concurrent terms of four years imprisonment with a two-year non-parole period. The sentencing judge noted that, absent the appellant's youth and other mitigating factors, a starting point of six years would have been appropriate. Special circumstances were found, reflecting the appellant's need for extended counselling on anger management and the fact that this was his first period of imprisonment.

The appellant sought leave to appeal, arguing the sentence was manifestly excessive and that the sentencing judge had made specific errors in his approach.

  • Whether the sentencing judge erred by failing to accept the appellant's evidence that his role in the second robbery was less significant than the Crown's facts sheet alleged
  • Whether the sentencing judge erred by failing to consider a non-custodial alternative, given the appellant's prior good record and rehabilitation prospects
  • Whether the sentence imposed was manifestly excessive having regard to the guideline judgment in Henry

Decision

The Court addressed the appellant's claim about his role in the second robbery. The appellant had given evidence that it was a co-offender, not himself, who confronted the second victim. The Court found that because the Crown's facts sheet had been tendered without objection or challenge at the time, the sentencing judge was entitled to rely on it. The appellant's own evidence was not tested, and no adverse inference arose from that; however, the sentencing judge was not bound to prefer untested defence evidence over unchallenged Crown material. No error was established in the finding adverse to the appellant on this point.

On the question of non-custodial sentencing, the Court applied the principle drawn from the guideline judgment in Henry that, for armed robbery and its equivalent, only exceptional circumstances justify a sentence other than full-time custody. Prior good character and rehabilitation prospects, while relevant, did not automatically constitute such exceptional circumstances. The sentencing judge had balanced general sentencing purposes, including deterrence and denunciation, against the appellant's subjective circumstances, and had used the special circumstances finding to extend the supervisory period and limit the proportional impact of the sentence.

The Court found no error of law or principle and no manifest unreasonableness in the exercise of the sentencing discretion, applying the threshold in House v The King (1936) 55 CLR 499. The sentences were not ones that warranted intervention under s 6(3) of the Criminal Appeal Act 1912.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that robbery in company under s 97 of the Crimes Act 1900 is treated as akin to armed robbery, carrying a 20-year maximum and warranting full-time custody save in exceptional circumstances.
  • Where a Crown facts sheet is tendered without objection, the sentencing court is entitled to act on it; an offender who gives evidence of a lesser role does not necessarily displace findings based on unchallenged prosecution material.
  • Untested defence evidence about lesser participation does not carry the same weight as evidence that has been properly tested through challenge in the proceedings below.
  • The Court affirmed that pack robberies targeting random victims in public places call for substantial sentences, and that general deterrence and denunciation can legitimately take precedence over individual rehabilitation prospects.
  • A finding of special circumstances can be used to extend the balance of a sentence for supervision purposes, particularly where an offender requires prolonged therapeutic programmes, without necessarily reducing the overall sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97 (robbery in company)
- Justices Act 1902 (NSW), s 51A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Henry (1999) 46 NSWLR 346 (CCA guideline judgment on armed robbery sentencing)
- House v The King (1936) 55 CLR 499 (appellate intervention in discretionary decisions)
- Attorney General's Application (No 1); Regina v Ponfield (1999) 48 NSWLR 327
- Thomson [2000] 49 NSWLR 383
- Camberon [2002] HCA 6
- Sharma [2002] NSWCCA 142