Citation: Regina v Alvarez, Alvarez and McCulloch [2002] NSWCCA 283
Court: Court of Criminal Appeal, New South Wales
Date: 19 July 2002
Judge(s): Blanch AJ; Smart AJ
Background
Three co-offenders appealed sentences imposed in the District Court at Parramatta on 17 July 2001 following convictions for a series of serious armed robberies and related offences committed between 1995 and 1998. The offending involved loaded firearms, violence against bank staff and members of the public, a shooting at a police officer, and a home invasion with shots fired at a victim.
The three appellants, two brothers and a third associate, were involved in overlapping episodes of offending to varying degrees. Their roles and the number of offences for which each was sentenced differed significantly, producing sentences of different lengths and structures.
The District Court sentenced the first brother (Jamie Alvarez) to an effective ten years with a six-and-a-half-year non-parole period, the second brother (Phillip Alvarez) to an effective twenty years with a fifteen-year non-parole period, and the associate (John McCulloch) to an effective sixteen years with a twelve-year non-parole period. Each appellant sought leave to appeal, contending their sentences were excessive or otherwise infected by error.
Legal Issues
- Whether the effective sentences imposed on each appellant were within the appropriate sentencing range given the nature and circumstances of the offending
- Whether the sentencing judge gave adequate weight to special circumstances, including personal circumstances, youth, psychological reports, and prospects of rehabilitation
- Whether parity principles required any adjustment to the sentences given the different outcomes for co-offenders
- Whether the sentencing judge adequately considered the totality of the offending when constructing the overall sentences
Decision
The Court of Criminal Appeal granted leave to appeal in all three matters but dismissed each appeal, finding no error warranting intervention in the sentences imposed at first instance.
Regarding Phillip Alvarez, the court considered his offending to be at the most serious end of the spectrum. It included an armed bank robbery where a shot was fired and a bank employee was injured, a conspiracy to rob a bank on pension day, a shooting at a police officer who was stopping their vehicle, and a home invasion during which shots were fired at a victim. The court found the effective twenty-year sentence, though substantial, was not outside the appropriate range given the planned, persistent, and violent nature of the conduct.
Regarding McCulloch, the court examined whether parity with Phillip Alvarez's sentence required any reduction. The court concluded that the difference in their sentences was justified by the differences in the extent and nature of each man's offending, and found no error in the structure or length of McCulloch's sentence.
Regarding Jamie Alvarez, the court acknowledged his case called for careful consideration. His offending was confined to two armed robbery matters, including an attempted robbery at a chemicals factory in 1995 and an attempted bank robbery in 1996. The court noted a gap in offending after 1996 and considered submissions about his psychological state and dependence on his older brother. However, the court found that the psychological evidence was limited, no psychiatric assessment had been obtained, and the sentencing judge had not overlooked those matters. The effective ten-year sentence was found to be within the appropriate range.
Orders Made
- Jamie Alvarez: leave to appeal granted, appeal dismissed
- Phillip Alvarez: leave to appeal granted, appeal dismissed
- John McCulloch: leave to appeal granted, appeal dismissed
Key Takeaways
- In dismissing all three appeals, the Court of Criminal Appeal confirmed that sentencing for multiple serious armed robberies involving loaded firearms, repeated violence, and careful planning will attract substantial head sentences and non-parole periods.
- Parity principles did not require equalisation of sentences between co-offenders where their roles and the extent of their individual criminal conduct differed materially across the series of offences.
- Where a psychological report identifies no psychosis and makes only limited findings, sentencing courts are not required to treat that material as a significant mitigating factor, particularly where a full psychiatric assessment was recommended but never obtained.
- A guilty plea to one charge and an admission of guilt on another do not automatically produce a significant overall reduction when the degree of criminality in the offending is assessed as extremely high.
- Sufficient evidence existed that the sentencing judge had properly considered all relevant circumstances; the Court of Criminal Appeal declined to intervene simply because a different outcome might have been available within the range.
Legislation and Cases Referenced
Legislation
- Crimes Act (NSW), s 97 (assault with intent to rob being armed; maximum penalty twenty years)
Cases
- Postiglione v The Queen (1995-1996) 189 CLR 295
- Lowe v The Queen (1984) 154 CLR 607
- R v MJR [2002] NSWCCA 129
- R v Henry (1999) 46 NSWLR 346