Citation: [2002] NSWCCA 446
Court: NSW Court of Criminal Appeal
Date: 11 November 2002
Judge(s): Wood CJ at CL, Dowd J, Bell J
Background
The applicant pleaded guilty in the Local Court to two serious offences committed on the same day in March 2001: aggravated breaking and entering with intent to commit larceny (carrying a maximum of 14 years), and robbery while armed with an offensive weapon (carrying a maximum of 20 years). A further minor offence of entering a vehicle without consent was taken into account on a Form 1 document at sentencing.
The underlying facts were serious. During a breaking and entering at a residential property, the applicant beat a 71-year-old man about the head and shoulders with a length of broomstick to assist his co-offenders in escaping. Shortly afterwards, he threatened a woman with a knife in a busy shopping centre car park while she was accompanied by her six-year-old daughter, stealing money and a mobile phone from her. All four offenders were arrested after attempting to force their way into a stranger's car at a red traffic light.
In the District Court, Freeman DCJ sentenced the applicant to four years imprisonment for the first count and four and a half years cumulative for the second, producing a total sentence of seven and a half years with an effective non-parole period of five and a half years. The applicant sought leave to appeal against the severity of those sentences.
Legal Issues
- Whether the sentencing judge gave adequate weight to the applicant's early guilty pleas when calculating the discount applied to each sentence
- Whether sufficient weight was given to the applicant's subjective circumstances, including his age, limited criminal history, employment background, and heroin addiction
- Whether the overall sentences and non-parole periods were manifestly excessive
- Whether the sentencing judge erred in accumulating the two sentences rather than directing that they be served concurrently
- Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify a departure from the standard ratio between head sentence and non-parole period
Decision
The Court of Criminal Appeal granted leave to appeal and allowed the appeal on each count. Bell J, with whom Wood CJ at CL and Dowd J agreed, found that the sentencing judge had failed to give adequate credit for the applicant's early guilty pleas. The Court applied a discount of 20 per cent to each sentence, noting that the pleas were entered at an early stage and that any trial would not have been one of particular complexity.
On the question of accumulation, the Court was not persuaded that the two sentences should run concurrently. Each offence was discrete and serious, and the principles of totality in sentencing did not require a different result. The Court accepted the sentencing judge's starting points as appropriate but adjusted the sentences downward to reflect the plea discount.
The Court found special circumstances under the Sentencing Procedure Act only to the limited extent necessary to adjust the non-parole period attached to the armed robbery sentence, given that it was cumulated upon the first sentence. Beyond that adjustment, the Court declined to depart further from the statutory proportion, holding that a more generous reduction would fail to reflect the objective seriousness of the offences.
Orders Made
- Leave to appeal against the severity of the sentences granted
- Appeal allowed in each case
- Sentences imposed in the District Court quashed
- Count 1 (aggravated break and enter): three years and three months imprisonment from 6 March 2001; non-parole period of two years and four months, expiring 5 July 2003
- Count 2 (armed robbery): three years and nine months imprisonment from 6 July 2003, expiring 5 April 2007; non-parole period of two years and two months from 6 July 2003
- First date eligible for parole consideration: 5 September 2005
Key Takeaways
- A 20 per cent discount for early guilty pleas was applied where pleas were entered at an early stage and any trial would not have been complex, consistent with the approach in R v Thomson & Houlton
- Accumulation of sentences for separate discrete offences committed close in time is not necessarily inconsistent with totality principles; each case turns on whether the offences are genuinely distinct
- Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 were established only in the limited context of adjusting the non-parole period on a cumulated sentence, not as a general basis for reducing the overall non-parole period
- A departure from the standard non-parole proportion that would fail to reflect the objective seriousness of offences will not be endorsed, even where favourable subjective factors are present
- Subjective circumstances, including a stable background, addiction, and a sparse criminal history, were acknowledged but did not outweigh the objective gravity of offences involving violence against elderly and vulnerable victims
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 97(1), 113(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 44(2)
- Criminal Appeal Act 1912 (NSW)
- Summary Offences Act 1988 (NSW), s 6A
Cases
- Cameron v The Queen [2002] HCA 6; ALJR 382
- Pearce v The Queen (1998) 194 CLR 610
- R v Sharma [2002] NSWCCA 142; 54 NSWLR 300
- R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383