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Court of Criminal Appeal 23 September 2002

Regina v Colin Howarth

[2002] NSWCCA 387

Assault & violenceTheft & propertyFirearms & weapons
SENTENCE APPEAL AGAINST SEVERITY PLEA OF GUILTY EIGHT YEARS' IMPRISONMENT WITH NON PAROLE PERIOD OF SIX YEARS

Citation: Regina v Colin Howarth [2002] NSWCCA 387
Court: NSW Court of Criminal Appeal
Date: 23 September 2002
Judge(s): Buddin J; Smart AJ

Background

The applicant pleaded guilty before a magistrate to assault with intent to rob whilst armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900. The offence occurred at a post office in Lake Heights, near Port Kembla. The applicant, wearing a balaclava and carrying a 30-centimetre knife, confronted a post office worker and demanded money after making a bogus triple-zero call to divert police to a nearby location. No money was obtained, and the applicant was detained by a bystander until police arrived.

The applicant was 44 years old at the time of the offence. He had a difficult personal history, including childhood violence, limited education, and ongoing problems with drugs and gambling. Significantly, he had a prior conviction for armed robbery in 1996 and was still on parole for that offence when he committed the present one.

In the District Court, Goldring DCJ sentenced the applicant to eight years' imprisonment with a non-parole period of six years. The sentencing judge reduced the sentence by 20 per cent to reflect the early guilty plea and the applicant's full admissions to police. The applicant sought leave to appeal that sentence as manifestly excessive.

  • Whether the eight-year head sentence with a six-year non-parole period was manifestly excessive for a single offence of assault with intent to rob whilst armed with an offensive weapon.
  • What weight should be given to aggravating factors, including the prior conviction for armed robbery and the fact that the offence was committed while on parole for that earlier offence.
  • How mitigating factors, including the early guilty plea, full admissions, and the applicant's personal circumstances, should be balanced in re-sentencing.

Decision

The Court of Criminal Appeal accepted that the offence was objectively serious. The victim was placed in considerable fear, the use of a knife was treated with particular gravity, and the applicant had committed a similar offence while on parole. The sentencing judge had been right to incorporate a significant element of personal deterrence.

Despite those aggravating features, the Court found that the original sentence was manifestly excessive. The case involved a single offence with no particular sophistication, an early guilty plea accompanied by an immediate and full confession, and no money was ultimately obtained. The applicant had also remained trouble-free for approximately two years after his release before reoffending.

The Court also noted that the head sentence of eight years was above the range indicated by the Court's earlier guidance in R v Henry and Barber (1999) 46 NSWLR 346 for offences against s 97 of the Crimes Act, and that JIRS sentencing statistics supported that assessment. The Court declined to find special circumstances, consistent with the approach taken at first instance and unchallenged on appeal.

The Court re-sentenced the applicant to six and a half years' imprisonment with a non-parole period of four years and ten months, both commencing from 4 October 2001.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The District Court sentence is quashed.
  • In lieu thereof, the applicant is sentenced to imprisonment for six and a half years, commencing 4 October 2001 and expiring 3 April 2008.
  • Non-parole period of four years and ten months, commencing 4 October 2001 and expiring 3 August 2006, at which time the applicant becomes eligible for consideration for release to parole.

Key Takeaways

  • A prior conviction for a similar offence and commission of the current offence while on parole are significant aggravating factors under sentencing principles, but they do not override the requirement that the total sentence remain proportionate to the objective seriousness of the individual offence.
  • The Court of Criminal Appeal confirmed that R v Henry and Barber (1999) 46 NSWLR 346 provides the relevant sentencing range for offences against s 97 of the Crimes Act 1900, and that departure from that range requires clear justification.
  • An early guilty plea combined with immediate, full admissions to police attracted a 20 per cent discount on sentence, a finding that went unchallenged on appeal.
  • Where an offender appears to have committed an offence intending to be caught and returned to custody, a sentencing court can properly note that circumstance as a sad commentary on the offender's capacity to manage life in the community, though it does not fundamentally alter the sentencing calculus.
  • In exercising its re-sentencing function, the Court of Criminal Appeal weighed the statutory aggravating and mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 to arrive at a sentence reduced by 18 months on the head term and just over 13 months on the non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (assault with intent to rob whilst armed with an offensive weapon; maximum 20 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(2) (special circumstances)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Henry and Barber (1999) 46 NSWLR 346 (sentencing range for armed robbery and related offences under s 97)