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Court of Criminal Appeal 14 August 2002

Regina v Budd

[2002] NSWCCA 302

Assault & violenceTheft & propertyPublic order & justice offences
SENTENCING ONE COUNT OF ASSAULT WITH INTENT TO ROB SUNDRY OFFENCES ON TWO FORMS 1

Citation: Regina v Budd [2002] NSWCCA 302
Court: New South Wales Court of Criminal Appeal
Date: 14 August 2002
Judge(s): Dunford J; Carruthers AJ

Background

The applicant, Stuart James Budd, was sentenced in the Sydney District Court following convictions on fifteen counts arising from a series of armed robberies and related offences committed across Sydney between September 1999 and April 2000. The offences involved the applicant entering various small businesses and pharmacies, producing a Stanley knife or similar blade, and demanding cash from employees. A further ten charges were taken into account on two Forms 1 (that is, additional charges formally acknowledged at sentencing without separate convictions being recorded).

The most serious offence, count 13, was armed robbery with wounding under section 98 of the Crimes Act 1900. During that robbery at a Waverton supermarket, the applicant cut an employee on the chest and arm when the employee tried to detain him. The thirteen remaining robbery counts were brought under section 97(1), which carries a maximum penalty of twenty years imprisonment.

Judge Kinchington QC sentenced the applicant to a head sentence of twelve years with a non-parole period of eight years on count 13, which was the last sentence in the accumulation to commence (19 April 2003). The applicant sought leave to appeal, arguing the sentences were excessive.

  • Whether the sentences imposed by the District Court exceeded the available sentencing discretion, either individually or in their overall effect
  • Whether the non-parole period on count 13, the most serious offence, was disproportionate given the accumulation of sentences and the applicant's personal circumstances
  • Whether the applicant's rehabilitation efforts, his serious injury while in custody, and the resulting permanent physical disabilities constituted special circumstances warranting a reduced non-parole period

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, but only in respect of the non-parole period on count 13. The head sentences on all counts were confirmed. The Court found that the overall sentencing structure was not manifestly excessive given the gravity and number of the offences.

However, the Court accepted that special circumstances existed justifying a reduction of the non-parole period on count 13. Several factors combined to support this conclusion. The accumulation of sentences itself was recognised as a relevant consideration. The applicant had also suffered a serious assault while in custody in February 2001, leaving him with permanent tinnitus, significantly reduced hearing, and balance difficulties. He had not identified his assailant and remained anxious about further attacks.

The Court also noted the applicant's positive conduct in custody, his stated commitment to overcoming heroin addiction, and evidence of rehabilitation efforts. These matters, together with the physical hardships he would face throughout the remainder of his sentence, supported a reduction of the non-parole period from eight years to five years and six months on count 13.

The practical effect of the adjustment was that, if granted parole on the earliest eligible date, the applicant would serve approximately eight years and six months in total custody, taking into account the accumulated commencement dates of the various sentences.

Orders Made

  • Application for leave to appeal granted
  • Appeal allowed
  • Head sentence on count 13 reduced to ten years imprisonment, commencing 19 April 2003 and expiring 18 April 2013
  • Non-parole period on count 13 reduced to five years and six months, commencing 19 April 2003 and expiring 18 October 2008
  • All other sentences confirmed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the accumulation of multiple sentences can itself constitute special circumstances justifying adjustment of a non-parole period, even where head sentences are otherwise appropriate.
  • Serious physical injury sustained by an offender while in custody, particularly where it results in permanent disability, is a relevant consideration when assessing the conditions under which the remainder of a sentence will be served.
  • A non-parole period may be reduced on appeal where the combined effect of sentence accumulation and personal hardship produces a result that exceeds the proper exercise of sentencing discretion, without disturbing the head sentence itself.
  • Under sections 97(1) and 98 of the Crimes Act 1900, the maximum penalties for armed robbery with wounding and robbery whilst armed are twenty-five years and twenty years respectively, and sentences in the range imposed here reflect the serious and repetitive nature of such offending.
  • Evidence of rehabilitation efforts, positive custodial conduct, and a genuine commitment to overcoming drug dependency were treated as mitigating factors in the sentencing appeal, though they did not outweigh the gravity of the offending as a whole.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1) and 98

Cases
- Pearce v The Queen (1998) 194 CLR 610
- R v Bavadra (2000) 115 A Crim R 252
- R v Henry [1998-1999] 46 NSWLR 346
- R v Itamua [2000] NSWCCA 502
- R v Karaman [2002] NSWCCA 48
- R v Kay [2002] NSWCCA 286
- R v Merritt [2000] NSWCCA 365