AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 18 June 2002

R v Hayes

[2002] NSWCCA 237

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING ARMED ROBBERY BLOOD FILLED SYRINGE

Citation: R v Hayes [2002] NSWCCA 237
Court: New South Wales Court of Criminal Appeal
Date: 18 June 2002
Judge(s): Dunford J, Adams J

Background

The applicant, a 25-year-old with no relevant prior convictions, pleaded guilty to armed robbery under s 97(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. On the evening of 26 February 2001, he entered a service station on the Central Coast wearing a makeshift hood with cut-out eyeholes and brandished a blood-filled syringe he had prepared earlier that evening. He demanded and received $300 from the console operator before fleeing to a waiting vehicle driven by a co-offender. The applicant was motivated by heroin withdrawal and used the stolen money to obtain drugs.

Police identified the vehicle from witness descriptions, stopped it the following evening, and the applicant made full admissions during a recorded interview. He later provided a further statement implicating the co-offender and indicated a willingness to give evidence against that person at trial. He pleaded guilty at the first available opportunity in both the Local Court and the District Court.

At the sentencing hearing in the District Court at Gosford, English DCJ imposed a sentence of 4 years imprisonment with a non-parole period of 3 years, commencing 7 June 2001. The applicant sought leave to appeal on the ground that the sentence was excessive.

  • Whether the head sentence of 4 years was excessive given the applicable guideline judgment in R v Henry and the particular circumstances of the offence, including the use of a blood-filled syringe
  • Whether the sentencing judge erred by failing to credit 34 days of pre-sentence custody served before the applicant was granted bail
  • Whether special circumstances existed that would justify a non-parole period shorter than the statutory proportion of the head sentence

Decision

Dunford J noted at the outset that he saw no excessive severity in the original sentence in isolation, given the seriousness of threatening a console operator with a blood-filled syringe at night. He emphasised that guideline judgments, including R v Henry, are indicative only and not binding rules. The sentencing judge was entitled to go beyond the ranges suggested in Henry because the use of a syringe had been identified in R v Fernando as more serious than the category of weapon considered in Henry, and because the judge was familiar with the local prevalence of drug-motivated armed robberies on the Central Coast.

However, the Court found that error arose in two respects. First, the sentencing judge had effectively taken a starting point in excess of 7 years before applying discounts, and a starting point of that magnitude was excessive in the circumstances. Second, the sentencing judge failed to give any credit for the 34 days the applicant had spent in custody prior to being granted bail. These two errors together warranted intervention and re-sentencing.

Re-sentencing from scratch, Dunford J took a starting point of 6 years. He accepted the discounts allowed below (15 percent for the utilitarian value of the guilty plea under R v Thomson, and 30 percent for assistance to authorities), noting those discounts were "somewhat generous" but declining to interfere with them. Applying a total discount of 45 percent produced a head sentence of approximately 3 years and 4 months.

On special circumstances, the Court of Criminal Appeal found that three factors in combination justified a departure from the standard non-parole proportion: the applicant was a first offender serving his first custodial sentence; he had made some preliminary steps toward drug rehabilitation before the offence; and a sworn affidavit filed on appeal demonstrated genuine and enthusiastic efforts at rehabilitation after sentencing. A non-parole period of 2 years and 2 months was fixed accordingly.

Orders Made

  • Leave to appeal granted
  • Sentence imposed by English DCJ quashed
  • Applicant re-sentenced to imprisonment for 3 years and 4 months, deemed to have commenced 3 May 2001 (that is, 34 days before 7 June 2001)
  • Non-parole period fixed at 2 years and 2 months
  • Earliest eligible date for release on parole: 2 July 2003

Key Takeaways

  • Guideline judgments such as R v Henry set indicative ranges only. The Court of Criminal Appeal confirmed that sentencing judges are entitled to exceed those ranges where the particular circumstances of the offence, including local patterns of offending and the nature of the weapon, warrant it.
  • A blood-filled syringe used to threaten a victim during robbery was identified, following R v Fernando, as an aggravating feature placing the offence in a more serious category than the weapons ordinarily considered in Henry, because the victim could not know whether exposure to the needle carried a risk of HIV or hepatitis infection.
  • Failure to credit pre-sentence custody constitutes a sentencing error capable of grounding appellate intervention, even where the error is relatively modest in duration.
  • Where an appellate court re-sentences, it must independently consider whether special circumstances exist, unconstrained by the finding (or absence of finding) made below.
  • A first offender serving a first custodial sentence, combined with genuine rehabilitative effort, can collectively constitute special circumstances justifying a reduced non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (armed robbery)
- Justices Act 1902 (NSW), s 51A (committal for sentence)

Cases
- R v Henry [1999] NSWCCA 111, 46 NSWLR 346
- R v Jurisic (1998) 45 NSWLR 209
- R v Fernando [2002] NSWCCA 28
- R v Thomson [2000] NSWCCA 305