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48
Court of Criminal Appeal 22 February 2002

REGINA v FERNANDO

[2002] NSWCCA 28

Assault & violenceTheft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCING WHETHER SENTENCE MANIFESTLY INADEQUATE CRIMINAL LAW SENTENCING

Citation: Regina v Fernando [2002] NSWCCA 28
Court: NSW Court of Criminal Appeal
Date: 22 February 2002
Judges: Spigelman CJ; Wood CJ at CL; Kirby J

Background

The respondent pleaded guilty in the District Court to six offences committed over a period of approximately three weeks in Dubbo in mid-2000. The offences included four counts of armed robbery, one count of assault with intent to rob while armed with an offensive weapon, and one count of attempting to use an offensive weapon to prevent lawful apprehension. Two further offences were taken into account on a Form 1. Each of the robbery offences carried a maximum penalty of twenty years imprisonment.

The robberies were serious in character. The respondent threatened victims with a syringe filled with a red liquid, demanding cash at motel reception desks and a post office. The respondent was on parole at the time he committed all of these offences.

Moore DCJ in the District Court imposed a total effective sentence of six years with a non-parole period of three years, with all sentences running from the date of arrest. The Crown appealed, contending that the sentences were manifestly inadequate and that the sentencing judge had failed to properly account for the fact that the offences were committed while the respondent was on parole.

  • Whether the original sentences were manifestly inadequate, having given insufficient weight to the objective gravity of the offences.
  • Whether the sentencing judge gave excessive weight to the respondent's subjective circumstances.
  • Whether the sentencing judge erred by failing to adequately consider, or at all, that the offences were committed while the respondent was on parole.
  • How sentences should be structured on resentencing, including the treatment of Aboriginality as a mitigating factor.

Decision

The Court of Criminal Appeal found that Moore DCJ committed an error of law by failing to give consideration to the fact that the offences were committed while the respondent was on parole. That omission was itself sufficient to warrant intervention.

The Court also found that the original sentences gave insufficient weight to the objective gravity of the offending. The vulnerability of the victims and the particular terror associated with the threatened use of a syringe were aggravating features that required greater weight. The sentencing judge had placed excessive weight on the respondent's subjective circumstances, rendering the overall sentence manifestly inadequate.

On resentencing, the Court acknowledged the respondent's Aboriginality and personal history of deprivation leading to drug abuse. Applying the principle from Neal v The Queen and the principles articulated in the earlier R v Fernando (1992), the Court confirmed that all offenders are sentenced according to the same principles, but that Aboriginality may illuminate mitigating factors that occur more frequently in certain groups. However, the Court found that these subjective considerations could not significantly reduce the weight to be given to the gravity of the offences, the respondent's lengthy criminal record, and the commission of offences on parole.

The Court restructured the sentences so that they commenced from the conclusion of the sentence the respondent was serving when the offences were committed, rather than from the date of arrest. The sentences were made partially concurrent to reflect the overall criminality of the conduct. A longer than usual supervisory period was considered desirable, constituting special circumstances justifying adjustment of the statutory ratio between head sentence and non-parole period.

Orders Made

  • Appeal allowed; sentences imposed by Moore DCJ on 15 March 2001 quashed.
  • Four counts of armed robbery (30 July, 1 August, 8 August 2000) and assault with intent to rob (9 August 2000): six years imprisonment commencing 5 January 2001, non-parole period of three years.
  • Attempting to use an offensive weapon to prevent lawful apprehension: five years imprisonment commencing 5 January 2002, non-parole period of three years.
  • Armed robbery (16 August 2000): six years imprisonment commencing 5 January 2002, non-parole period of three years.

Key Takeaways

  • Failing to consider that offences were committed while an offender was on parole constitutes an error of law in the sentencing process, sufficient to enliven a Crown appeal.
  • A sentence may be manifestly inadequate where subjective circumstances are accorded excessive weight at the expense of the objective gravity of the offending, including the vulnerability of victims and the nature of the threats used.
  • Aboriginality operates in sentencing to highlight mitigating factors that may arise more commonly in certain communities, such as histories of deprivation and drug dependency, but does not alter the fundamental principles applicable to all offenders.
  • Where offences are committed while an offender is on parole, sentences should generally commence from the conclusion of the sentence being served at the time of the offending, not from the date of arrest.
  • Partial concurrency of sentences may be appropriate to reflect the totality of an offender's criminality across multiple related offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(a), 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Justices Act 1902 (NSW), s 51A

Cases:
- Cameron v The Queen [2002] HCA 6
- Neal v The Queen (1982) 149 CLR 305
- Wong and Leung v The Queen [2001] HCA 64
- R v Fernando (1992) 72 ACrimR 58
- R v Henry (1999) 46 NSWLR 346
- R v Pearce (1998) 194 CLR 610
- R v Richards [1981] 2 NSWLR 464
- R v Readman (1990) 47 ACrimR 181
- R v Stone (1995) 84 ACrimR 218; (1995) 85 ACrimR 434
- R v Thompson & Houlton (2000) 49 NSWLR 383
- R v Kyroglu and Tsoukatos [1999] NSWCCA 106
- R v Fleming [1999] NSWCCA 142
- R v Hammoud (2000) 118 ACrimR 66
- R v Lemene (2001) 118 ACrimR 131
- R v Ceissman [2001] NSWCCA 73
- R v Pitt [2001] NSWCCA 156
- R v Vranic (NSWCCA, 7 May 1991, unreported)
- R v Hickey (NSWCCA, 27 September 1994, unreported)
- R v Daniel [1998] 1 Qd R 499
- R v Jerrard (1991) 56 ACrimR 297
- R v ROS [2000] NSWCCA 175
- R v Tran [1999] NSWCCA 109