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33
Court of Criminal Appeal 10 December 2002

R v Hernando

[2002] NSWCCA 489

Also reported as (2002) 136 A Crim R 451
Assault & violenceTheft & property
CRIMINAL LAW ROBBERY IN COMPANY CRIMES ACT 1900 S 97(1) SENTENCE ADEQUACY CROWN APPEAL

Citation: R v Hernando [2002] NSWCCA 489
Court: NSW Court of Criminal Appeal
Date: 10 December 2002
Judge(s): Heydon JA; Levine J; Carruthers AJ

Background

The respondent, a 19-year-old, pleaded guilty to two counts of robbery in company under s 97(1) of the Crimes Act 1900 (NSW), each carrying a maximum penalty of 20 years' imprisonment. The offences occurred five days apart in August 2001 and involved the use of a knife against victims of similar age to the respondent. The sentencing judge in the District Court imposed a fixed term of 6 months on the first count and 2 years with a 6-month non-parole period on the second, with both sentences to run concurrently.

The respondent was released from custody on 6 March 2002, having served the full 6-month minimum term. More than two months later, on 2 May 2002, the Director of Public Prosecutions filed notices of appeal against the sentences on the ground that they were manifestly inadequate.

The Crown's appeal came before the Court of Criminal Appeal on 24 July 2002. The court dismissed it on that day and later delivered written reasons on 10 December 2002.

  • Whether the sentences imposed by the sentencing judge were manifestly inadequate and therefore disclosed appellable error.
  • Whether, even if appellable error existed, the Court of Criminal Appeal should exercise its residual discretion under s 5D of the Criminal Appeal Act 1912 (NSW) to decline to intervene.
  • What role Crown delay in filing and prosecuting a sentence appeal plays in the exercise of that residual discretion.

Decision

The Court first confirmed the two-stage framework for Crown sentence appeals. The Crown must first identify an appellable error in the sentencing judge's discretionary decision. Then, even where such error is found, the Court retains a residual discretion under s 5D of the Criminal Appeal Act 1912 not to interfere, particularly where intervention would produce unfairness or injustice to the respondent.

On the first question, the Court found that the non-parole period imposed by the sentencing judge did disclose appellable error. The non-parole period failed adequately to reflect the criminality involved in the offences, particularly in circumstances where the respondent had used a knife against one victim.

On the second question, the Court exercised its residual discretion to dismiss the appeal despite that error. The respondent had completed the whole of one sentence and the minimum term of the other before the Crown gave any indication it intended to appeal. The Court characterised the delay as having planted a false impression in the respondent's mind that his punishment was complete. Reversing that impression, and returning him to prison, would itself inflict a form of injustice disproportionate to the error identified.

The Court also noted broader considerations: the respondent's youth, the sentencing judge's finding of rehabilitation prospects, reasonable post-release progress, and the distress caused by the belated Crown appeal. While acknowledging the respondent may have deserved greater punishment at the time of sentencing, the Court held it would be unjust in these circumstances to impose further imprisonment through the appellate process.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • A Crown sentence appeal requires two steps: identification of appellable error in the sentencing discretion, and negation of any reason for the Court to exercise its residual discretion not to intervene.
  • The Court of Criminal Appeal confirmed that the residual discretion under s 5D of the Criminal Appeal Act 1912 exists to protect convicted persons from unfairness or injustice flowing from an adverse appellate outcome, even where error below is established.
  • Significant Crown delay in filing a sentence appeal is a material factor in the exercise of that residual discretion, particularly where the respondent has completed custody before being put on notice of the Crown's dissatisfaction.
  • In dismissing the appeal, the Court distinguished between the question of whether a respondent deserved greater punishment at sentencing, and whether further imprisonment would be just given what had occurred in the appellate process itself.
  • Where Crown authorities face resource constraints in assessing whether to appeal lenient sentences, the Court indicated that the consequences of resulting delay should not fall entirely on the respondent class.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Power v R (1974) 131 CLR 623
- Griffiths v R (1977) 137 CLR 293
- R v Carngham (1978) 140 CLR 487
- R v Holder [1983] 2 NSWLR 245
- R v Osenkowski (1982) 30 SASR 212
- R v Hicks (1987) 45 SASR 270
- R v Hallocoglu (1992) 29 NSWLR 67
- Everett v R (1994) 181 CLR 65
- R v Potter (unreported, NSWCCA, 12 April 1994)
- Pearce v R (1998) 194 CLR 610
- R v Kyroglou [1999] NSWCCA 106
- R v Horne [1999] NSWCCA 391
- R v Griggs (2000) 111 A Crim R 233
- R v Malone [2000] NSWCCA 156
- R v Poihipi [2001] NSWCCA 306
- R v Simpson [2001] NSWCCA 534
- R v Harris (2001) 121 A Crim R 380
- Ketteman v Hansel Properties Pty Ltd [1987] 1 AC 189