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Court of Criminal Appeal 16 December 2002

Regina v Anderson

[2002] NSWCCA 485

Assault & violenceTheft & property
CRIMINAL LAW: SENTENCE CROWN APPEAL SENTENCES INADEQUATE IN THEIR TOTALITY SENTENCE DISCRETION NOT TO INTERFERE.

Citation: Regina v Anderson [2002] NSWCCA 485
Court: NSW Court of Criminal Appeal
Date: 16 December 2002
Judge(s): Heydon JA, Hulme J, Hidden J

Background

The respondent pleaded guilty in the District Court to four charges arising from a prolonged course of criminal conduct on a single night in February 2002: aggravated kidnapping, robbery in company, and two counts of larceny of a motor vehicle. The offending involved the abduction and restraint of a teenage victim over several hours, culminating in an armed robbery at a service station while the victim remained bound in a vehicle outside.

The District Court sentenced the respondent to an overall effective sentence of three years imprisonment with a non-parole period of eighteen months, all sentences dating from her arrest on 17 February 2002. The respondent was 24 years old, had a prior record limited to dishonesty offences, and presented a distressing subjective case including a very disturbed upbringing.

The Director of Public Prosecutions appealed under section 5B of the Criminal Appeal Act 1912, contending that the sentences were manifestly inadequate in their totality.

  • Whether the overall sentence of three years was manifestly inadequate given the seriousness of the aggravated kidnapping and robbery in company charges.
  • Whether the Court should exercise its residual discretion to decline to intervene, despite finding the sentence inadequate, in light of significant post-sentence conduct by the respondent.

Decision

Hidden J, with whom Heydon JA and Hulme J agreed, accepted that the overall sentence of three years failed to reflect the extent of the respondent's criminality, particularly as regards the kidnapping and robbery charges, and that the sentence would ordinarily have warranted appellate intervention. His Honour acknowledged the difficulty of the sentencing task at first instance, given the respondent's distressing personal history.

However, the Court declined to intervene because of a compelling development that arose after sentencing. On 8 July 2002, while in custody, the respondent intervened to assist a prison officer who was being attacked by another inmate. The Governor of the Correctional Centre issued the respondent with a written commendation, noting that the officer might have been more seriously injured without her help, and acknowledging that the respondent had risked both her personal safety and the displeasure of other inmates by coming to an officer's aid.

The Court found that this incident was not performed in anticipation of the appeal, as the Notice of Appeal was not filed until several weeks later. Even if self-interest had played some part, the conduct would still have carried significant weight. The incident was also consistent with broader evidence of the respondent's positive engagement with prison discipline and rehabilitative programs.

Heydon JA observed that good behaviour in prison badly needs to be encouraged, and that taking such conduct into account on re-sentencing may serve to encourage it. Passing a significantly increased sentence in these circumstances was not considered appropriate, and the Court exercised its residual discretion to dismiss the appeal.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, even where a sentence is found to be manifestly inadequate in its totality, the Court retains a residual discretion to decline to intervene where countervailing considerations make re-sentencing inappropriate.
  • Post-sentence conduct in custody, particularly conduct reflecting genuine rehabilitation and personal courage, is a relevant consideration if the Court would be required to re-sentence the offender on appeal.
  • Spontaneous and courageous action by a prisoner in defence of a corrections officer, recognised by a formal commendation from the prison Governor, was treated as a highly significant indicator of rehabilitation prospects.
  • In dismissing the appeal, the Court noted that encouraging good behaviour in the prison system is a legitimate sentencing consideration, and that appellate courts can factor in such conduct when assessing whether to exercise discretion against intervention.
  • The timing of the conduct relative to the filing of a Crown appeal notice is relevant to assessing whether it was genuinely spontaneous, though the Court indicated that even conduct partly motivated by self-interest retains significance.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5B
- Crimes Act 1900 (NSW), ss 86(2) (aggravated kidnapping), 97(1) (robbery in company), 154A/117 (larceny of motor vehicle)

Cases:
- R v Henry & Ors (1999) 46 NSWLR 346
- R v Goundar [2001] NSWCCA 198