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Court of Criminal Appeal 17 June 2002

REGINA v AKARI

[2002] NSWCCA 253

Assault & violenceTheft & propertyFirearms & weapons
APPEAL AGAINST SEVERITY OF SENTENCE ARMED ROBBERY APPEAL AGAINST SEVERITY OF SENTENCE ARMED ROBBERY USE AND DISCHARGE OF FIREARM APPEAL AGAINST SEVERITY OF SENTENCE

Citation: Regina v Akari [2002] NSWCCA 253
Court: NSW Court of Criminal Appeal
Date: 17 June 2002
Judge(s): Spigelman CJ; Simpson J; Blanch AJ

Background

The appellant was convicted after trial of four offences of armed robbery (or aiding and abetting armed robbery) under s 97(1) of the Crimes Act 1900, all committed within approximately 35 minutes in the Revesby area on 1 July 1998. The offences involved brandishing a firearm at multiple victims, making express threats to shoot, and, in the final incident, the actual discharge of the weapon. The appellant was 18 years old at the time.

The District Court sentenced the appellant to fixed terms on the first two counts and, on the third and fourth counts, to a total of five years comprising a minimum term of three years and an additional term of two years. The sentences on counts three and four were made consecutive to those on counts one and two.

The appellant initially appealed against both conviction and sentence. The conviction appeal was abandoned, leaving only the appeal against the severity of the sentence.

  • Whether the sentencing judge gave adequate weight to the finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 when structuring the non-parole period
  • Whether the sentencing judge failed to give sufficient weight to mitigating factors, including the appellant's youth, limited intelligence (IQ of 65), drug-affected capacity, good rehabilitation prospects, limited criminal history, and the small amounts taken
  • Whether the degree of cumulation applied to the sentences was excessive, given that the offences formed a single episode of criminal conduct
  • Whether, in the absence of a specifically identified error, an appellate court could intervene on the basis that the end result appeared to reflect an imbalance between aggravating and mitigating factors

Decision

Spigelman CJ, with Simpson J and Blanch AJ agreeing, dismissed the appeal. The Chief Justice emphasised that the Court of Criminal Appeal sits as a court of error and does not re-exercise the sentencing discretion afresh. No particular error was identified in the sentencing judge's reasons, and the appellant's submissions amounted to a contention that error must be inferred from the overall result.

The court acknowledged the significant mitigating features, including the appellant's youth, limited intelligence, drug history, psychologist's assessment of non-violent disposition and good rehabilitation prospects, and the support of family and friends. However, those features were weighed against serious aggravating circumstances: the use of a firearm, express threats to shoot on two occasions, the actual discharge of the weapon in the fourth count, and the fact that all offences were committed while the appellant was on conditional liberty for prior drug offences.

Spigelman CJ noted that, while Count 4 (involving the actual discharge of the firearm) was of greater objective seriousness than Count 3, the same sentence was imposed on both. The Chief Justice indicated he would not interfere with either sentence. The overall balancing of mitigation against aggravation, and the decision to make some sentences consecutive, fell within the wide discretion available to the sentencing judge.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that it sits as a court of error and will not substitute its own view of the appropriate sentence simply because the end result appears harsh; a specific error in the sentencing process must be identified.
  • Where no particular error appears on the face of the sentencing judge's reasons, a submission that error must be inferred from the severity of the outcome is insufficient to ground appellate intervention.
  • A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 does not dictate a particular quantum of reduction in the non-parole period; the sentencing judge retains a wide discretion in how that finding is reflected in the sentence structure.
  • Significant mitigating factors, including youth, low intelligence, drug-affected capacity, and good rehabilitation prospects, do not automatically displace the weight to be given to serious aggravating circumstances such as use and discharge of a firearm and offending while on conditional liberty.
  • In dismissing the appeal, the court reinforced that partial cumulation of sentences across a series of offences committed in a single episode remains within the legitimate discretionary range available to a sentencing judge.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (armed robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (special circumstances and the non-parole period)

Cases: No specific cases were cited in the judgment text.