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Court of Criminal Appeal 14 August 2002

R v Hansen

[2002] NSWCCA 321

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING SEVERITY ROBBERY IN COMPANY POWER OF COURT OF CRIMINAL APPEAL TO RE SENTENCE.

Citation: R v Hansen [2002] NSWCCA 321
Court: NSW Court of Criminal Appeal
Date: 14 August 2002
Judge(s): Dunford J; Carruthers AJ

Background

The applicant pleaded guilty before a magistrate to multiple offences and was committed to the District Court at Campbelltown for sentence. He was sentenced by Acting Judge Ford QC in April 2000. The charges included two counts of robbery in company (maximum 20 years each), one count of robbery (maximum 14 years), and one count of using an offensive weapon to prevent lawful apprehension (maximum 12 years).

The offences occurred across three incidents in 1999. Two early-morning armed robberies targeted the same service station at Minto, with cash totalling approximately $990 taken at knifepoint. The third incident involved a till snatch at a supermarket, after which the applicant threatened pursuing members of the public with a hypodermic syringe, claiming he had Hepatitis C.

The applicant was 23 years old at the time of the offences and had an extensive criminal record dating from age 16, including prior convictions for robbery. He had been released from custody only approximately three months before committing these offences, following revocation and reinstatement of parole. His offending was linked to a long-standing heroin addiction.

  • Whether the sentences originally imposed were excessive and fell outside the proper range of a valid sentencing discretion.
  • Whether the sentences were expressed in the form required by the applicable statute, specifically the Crimes (Sentencing Procedure) Act 1999.
  • Whether the Court of Criminal Appeal had the power to re-sentence the applicant, including the power to take into account events occurring after the original sentence (including a subsequent escape from custody and additional convictions).
  • How to treat the 49 days of "street time" the applicant was at liberty following his escape from lawful custody.

Decision

The Court found that the original sentences, while not necessarily excessive in quantum, had not been expressed in the form required by the Crimes (Sentencing Procedure) Act 1999. Because the sentencing judge had failed to have regard to the provisions of that Act, it was necessary for the Court of Criminal Appeal to re-sentence the applicant, even though the effective sentences imposed were not outside the proper range of a valid sentencing discretion.

In re-sentencing, the Court was entitled to consider matters arising after the original sentence. The applicant had, since sentencing, escaped from lawful custody and accrued further convictions for escape and shoplifting. Despite those subsequent matters, the Court declined to increase the effective sentences.

A separate question arose concerning the 49 days during which the applicant was at liberty following his escape. The Court accepted that, had the appeal simply been dismissed, that period of street time would ordinarily have been added to the end of the existing sentence. To address this, the Court advanced the commencement date of the sentences by 49 days and expressly noted that this adjustment reflected the time the applicant had been unlawfully at liberty.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed; original sentences quashed.
  • Re-sentenced as follows:
  • For each robbery in company: 3 years imprisonment, sentences to be served concurrently, deemed to have commenced 2 September 1999.
  • For the Bradbury robbery (taking into account the Form 1 matter) and the use of an offensive weapon to prevent apprehension: 5 years imprisonment, sentences concurrent with each other but cumulative on the service station robbery sentences, commencing 2 September 2002.
  • Non-parole period of 2 years fixed for the latter offences, with the earliest parole eligibility date of 1 September 2004.
  • The commencement date of 2 September 1999 (rather than 18 July 1999, the original custody date) reflects the 49 days of street time following the applicant's escape from lawful custody.

Key Takeaways

  • Where sentences are not expressed in the form required by the applicable sentencing statute, the Court of Criminal Appeal may be required to re-sentence the offender even if the original sentences were not otherwise excessive.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal's power to re-sentence extends to taking into account events and conduct occurring after the original sentence was imposed, including subsequent convictions.
  • Street time spent at liberty following an escape from lawful custody is a factor the Court of Criminal Appeal can address when re-sentencing, including by adjusting sentence commencement dates to account for that period.
  • A history of drug-driven offending, prior parole failures, and a pattern of reoffending shortly after release from custody all bear on the assessment of appropriate sentences for robbery in company.
  • The transition from the Sentencing Act 1989 to the Crimes (Sentencing Procedure) Act 1999 required sentencing courts to express their orders in the form prescribed by the new Act, and failure to do so was a technical error capable of attracting appellate intervention.

Legislation and Cases Referenced

Legislation
- Justices Act 1902 (NSW), s 51A
- Crimes Act 1900 (NSW), ss 33B(a), 94, 97(1)
- Sentencing Act 1989 (NSW), ss 5, 6
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 43, 44, 45
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases Cited
- R v Carrion [2000] NSWCCA 191; 49 NSWLR 149
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Thomson [2000] NSWCCA 309; 49 NSWLR 383
- R v Stone (1995) 85 A Crim R 436
- R v Morgan (1993) 78 A Crim R 368
- R v Barton [2001] NSWCCA 63