Citation: Regina v Christian [2002] NSWCCA 264
Court: Court of Criminal Appeal, New South Wales
Date: 19 June 2002
Judge(s): Spigelman CJ, Simpson J, Blanch AJ
Background
The respondent, a 44-year-old Aboriginal man with an extensive criminal history dating back to 1972, was convicted of two counts of robbery under s 94 of the Crimes Act 1900, each carrying a maximum penalty of 14 years. The offences involved demanding money at two separate premises in October 2000, on each occasion implying he was armed with a gun. Two additional matters (a further robbery and a demand with intent to steal) were dealt with on a Form 1, meaning they were taken into account at sentence without separate conviction.
Crucially, the respondent committed all of these offences while on parole, having been released from custody only about two months before the first offence occurred. His parole was revoked the day after his arrest, leaving him with a balance of one year, eight months and nineteen days still to serve.
At sentencing in the Parramatta District Court in February 2002, Balla DCJ imposed concurrent sentences of three years and two months on each count, backdated to 1 November 2000 (the date his parole revocation took effect), with a non-parole period of two years. The Crown appealed, contending the sentences were manifestly inadequate.
Legal Issues
- Whether the sentences imposed by the District Court were manifestly inadequate, having regard to the objective seriousness of the offences and the respondent's criminal history
- Whether it was appropriate to backdate the sentences to the date of the parole revocation, effectively giving the respondent a substantial discount
- Whether the respondent had genuinely reached a "cross roads" in terms of rehabilitation, warranting some leniency in resentencing
- How the double jeopardy principle, which applies on Crown appeals, should be balanced against the need to impose an adequate sentence
Decision
The Court of Criminal Appeal unanimously allowed the Crown appeal, finding the overall sentences manifestly inadequate. Blanch AJ, who delivered the principal judgment with Spigelman CJ and Simpson J agreeing, identified three unusual features in the sentences below: the backdating to the parole revocation date (conferring a very significant discount), the failure to specify which count reflected the Form 1 matters, and the imposition of identical concurrent sentences on each count.
Blanch AJ held that committing offences while on parole is not a basis for reducing an otherwise appropriate sentence; if anything, it weighs against reduction. While acknowledging the delay in proceedings was partly attributable to the Aboriginal Legal Service securing reports and negotiating the indictment, and that the respondent should not be penalised for that, the backdating went well beyond accounting for delay.
On rehabilitation, the Court acknowledged it would ordinarily be sceptical of a "cross roads" claim given the respondent's repeated prior imprisonment. However, the Court accepted uncontradicted evidence from Dr Daniels, the Director of Health Services at the Aboriginal Medical Service Co-operative, that the respondent had undergone significant change, that his depressive illness was now being treated with medication that was unavailable to him at the time of the offences, and that he presented a low risk of reoffending. The Court also noted the double jeopardy consideration applicable to Crown appeals, which calls for some restraint in the sentence ultimately imposed on resentencing.
Balancing these factors, the Court resentenced the respondent to four years on the first count (incorporating the Form 1 matters) and three years and two months on the second count, both backdated to 1 November 2000 and served concurrently, each with a two-year non-parole period expiring 31 October 2002.
Orders Made
- Crown appeal allowed; sentences imposed below quashed
- On the first count, taking into account the two Form 1 matters: four years imprisonment, commencing 1 November 2000, with a non-parole period of two years expiring 31 October 2002
- On the second count: three years and two months imprisonment, commencing 1 November 2000, with a non-parole period of two years expiring 31 October 2002
- Both sentences to be served concurrently
Key Takeaways
- Committing offences while on parole is not a mitigating factor that justifies reducing an otherwise appropriate sentence; the Court of Criminal Appeal confirmed it more commonly operates to prevent reduction of the sentence.
- Backdating sentences to the date a parole revocation takes effect, rather than the date of sentence, may confer such a significant discount on the offender as to render the overall sentence manifestly inadequate.
- A claim that an offender has reached a genuine "cross roads" under the principle in R v Osenkowski (1982) 5 A Crim R 394 requires substantial, uncontradicted supporting evidence, particularly where the offender has a lengthy history of prior imprisonment; medical evidence of a previously untreated condition contributing to offending conduct can carry weight in this assessment.
- On a Crown appeal, the double jeopardy principle remains a relevant consideration that may moderate the sentence ultimately imposed by the appellate court, even where the original sentence is found manifestly inadequate.
- Sentencing courts must clearly identify which count is to reflect matters taken into account on a Form 1; a failure to do so renders the sentencing methodology difficult to understand and may constitute a sentencing error.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 94 (robbery, maximum penalty 14 years)
Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on armed robbery sentencing)
- R v Osenkowski (1982) 5 A Crim R 394 (the "cross roads" principle in sentencing rehabilitation cases)