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Court of Criminal Appeal 15 November 2002

R v Ebsworth

[2002] NSWCCA 465

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE ARMED ROBBERY FORM 1 ELIGIBILITY FOR DRUG COURT PROGRAMME APPEAL DISMISSED

Citation: R v Ebsworth [2002] NSWCCA 465
Court: New South Wales Court of Criminal Appeal
Date: 15 November 2002
Judge(s): Wood CJ at CL, Dowd J, Bell J

Background

The appellant pleaded guilty in the District Court to armed robbery after entering a Paddington liquor store with three co-offenders, carrying a baseball bat, and demanding cash and goods from staff. The offenders made off in a stolen vehicle, giving rise to a secondary offence of being carried in a conveyance without the owner's consent, which was taken into account on a Form 1 (a procedural mechanism allowing additional offences to be considered in sentencing without separate conviction).

An earlier attempt to refer the appellant to the Drug Court had failed after the Court of Appeal held that the offence involved violent conduct, making him ineligible under the Drug Court Act 1998. The matter then proceeded to sentence before Judge Milson in the District Court, who imposed five years' imprisonment with a non-parole period of three years and nine months, finding no special circumstances warranted a variation of the standard ratio between head sentence and non-parole period.

The appellant sought leave to appeal, arguing the sentence was excessive on several grounds, including that the failed Drug Court referral should have mitigated the sentence, that the sentencing judge improperly discounted the utilitarian value of his guilty plea, and that special circumstances existed justifying a longer parole period.

  • Whether the failed Drug Court referral was a mitigating factor that the sentencing judge ought to have given greater weight to
  • Whether the sentencing judge erred by noting the prosecution had "a very strong case," thereby improperly reducing the discount given for the guilty plea
  • Whether the sentencing judge erred in finding no special circumstances to justify varying the standard non-parole period ratio
  • Whether a mathematical error in calculating the non-parole period expiry date warranted correction

Decision

On the Drug Court referral, the Court accepted that the applicant's desire to participate in the program had some relevance to his remorse and rehabilitation prospects, potentially bearing on special circumstances. However, the Court rejected the broader argument that any disappointment or delay flowing from the failed referral could operate as a mitigating factor in its own right.

On the guilty plea, the Court acknowledged that commenting on the strength of the prosecution case can constitute error if it reduces the utilitarian value attributed to a plea, citing the principles in R v Thomson & Houlton and R v Parkinson. Reading the sentencing judge's remarks in context, however, the Court was not persuaded that his Honour had done anything more than note the prosecution's strong evidentiary position before acknowledging the early indication of a guilty plea. The sentencing judge's reference to applying "a degree of appropriate leniency" confirmed the plea had not been overlooked. The Court also noted that any overlooking of the plea's significance was fully compensated for by the judge's failure to address the significant aggravating feature that the offence was committed while the appellant was on parole.

On special circumstances, the Court upheld the finding that none existed. The appellant's serious prior record, including three prior convictions for robbery-type offences, repeated parole breaches, and the fact that the current offence was committed during a parole period, weighed heavily against intervention. The Court found that any reduction in the non-parole period would have been unwarranted in law.

The Court did identify a mathematical error in the judgment below: the non-parole period expiry date had been recorded as 10 July 2005 when it should have been 11 November 2004. The Court corrected this error pursuant to section 6(3) of the Criminal Appeal Act 1912.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed
  • Error in the non-parole period expiry date corrected: the correct expiry date is 11 November 2004 (not 10 July 2005 as stated by the sentencing judge)

Key Takeaways

  • A failed Drug Court referral may be relevant to sentencing as evidence of remorse and rehabilitation prospects, but does not independently operate as a mitigating factor merely because the process caused delay or inconvenience.
  • Noting that the Crown had a strong case is potentially an error if it diminishes the recognised utilitarian value of a guilty plea, but the sentencing court's remarks must be read in context to determine whether that error actually occurred.
  • Under section 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal has power to correct a mathematical error in a sentence calculation even where the substantive appeal is dismissed.
  • Offending while on parole is a significant aggravating feature; where a sentencing judge omits to address it, that omission may offset other apparent errors in the sentencing remarks.
  • No error was established in refusing to find special circumstances where the offender had a lengthy record of serious violence, had repeatedly breached parole conditions, and had re-offended during a parole period.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Drug Court Act 1998 (NSW)

Cases:
- DPP v Ebsworth [2001] NSWCA 318
- R v Armanios [2001] NSWCCA 110
- R v Barton (2001) 121 A Crim R 185
- R v Bavadra (2000) 115 A Crim R 152
- R v Bertoncello, NSWCCA, 5 November 1997
- R v Cook [2002] NSWCCA 140
- R v Henry (1999) 46 NSWLR 346
- R v Parkinson [2001] NSWCCA 244
- R v Readman (1990) 47 A Crim R 181
- R v Simpson [2001] NSWCCA 534
- R v Thomson & Houlton (2000) 49 NSWLR 383