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Court of Criminal Appeal 4 December 2002

R v RAI

[2002] NSWCCA 506

Assault & violenceTheft & property

Citation: R v RAI [2002] NSWCCA 506
Court: New South Wales Court of Criminal Appeal
Date: 4 December 2002
Judge(s): Ipp JA, Hulme J, Bell J

Background

The respondent was sentenced in the District Court in August 2002 for two armed robberies committed in March 1998, in which he and an accomplice used a hammer to rob teenage checkout operators at a Guildford supermarket of approximately $500. Although he had left a fingerprint at the scene, authorities took no significant action until September 2001, and he was not arrested until February 2002 when he pleaded guilty.

The respondent had a significant prior record. In 1999, he had been sentenced to four years' imprisonment for separate armed robberies committed in mid-1998, and he was released on parole in May 2000. He had an intellectual disability placing him in the lowest three per cent of the population, a violent and difficult upbringing, and a history of drug and alcohol addiction. Following his parole release, however, he made substantial rehabilitative progress, securing employment and addressing his addiction.

Judge Sides in the District Court imposed concurrent sentences of 15 months' imprisonment with a non-parole period of 5 months, commencing from the date the respondent was returned to custody in March 2002. The Crown appealed, contending the sentences were manifestly inadequate given the objective gravity of armed robbery.

  • Whether the sentences imposed were manifestly inadequate, having regard to the objective seriousness of the armed robbery offences
  • Whether the sentencing judge gave excessive weight to the respondent's intellectual disability and drug addiction as mitigating factors
  • Whether the principles applicable to delay in sentencing (derived from cases such as R v Todd and Mill v R) applied where authorities had simply failed to investigate and charge promptly, rather than where charges were known and sentencing was formally delayed
  • Whether the Court of Criminal Appeal should exercise its discretion to decline to intervene even if error were established

Decision

The Court acknowledged that, viewed in isolation against their objective gravity, the sentences fell well short of what the armed robberies would ordinarily warrant. However, the circumstances were described as most unusual, and the sentencing judge had not exceeded the bounds of his discretion.

Hulme J noted the respondent's offences were closely linked by type, cause, and timing to those for which he had already been sentenced in 1999. Had all the matters been dealt with together at that time, the totality principle would have constrained any increase in sentence. It would therefore have been wrong to treat the later offences as entirely discrete from the earlier ones.

The Court drew a distinction between the Todd principle, which applies where an offender is charged and sentencing is delayed while another sentence is being served, and the present situation where authorities simply failed to investigate. While the two situations differ, the same considerations of fairness, including demonstrated rehabilitation and the passage of time, were still relevant. The respondent's rehabilitation was genuine and substantial, his intellectual disability and troubled background were properly treated as mitigating, and the unexplained delay in bringing charges was a significant factor.

The Court also exercised its residual discretion not to intervene. It noted the considerations of double jeopardy and the hardship of reimposing custody on a respondent to a Crown appeal. Particularly relevant was that the Crown Prosecutor had offered no submissions at the original sentencing hearing, and while that did not bar an appeal, it remained a weighty factor in the exercise of the Court's discretion.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that demonstrated rehabilitation carries added mitigating weight compared to mere prospects of future rehabilitation.
  • The R v Todd principle, requiring flexibility and leniency where sentencing is delayed during service of another sentence, does not apply in identical terms where delay results from an unexplained failure to investigate, though similar fairness considerations remain relevant.
  • Where offences are closely connected by type, timing, and cause to offences previously sentenced, the totality principle requires a sentencing court to consider what would have resulted had all matters been dealt with together.
  • Intellectual disability and drug addiction arising from a profoundly disadvantaged background can, in appropriate and unusual circumstances, be treated as genuine mitigating factors rather than neutral or aggravating ones.
  • The Crown Prosecutor's decision not to make submissions at the original sentencing hearing, while not preventing an appeal, is a material consideration in the appellate court's exercise of its discretion whether to intervene.

Legislation and Cases Referenced

Cases:
- R v Todd (1982) 2 NSWLR 517
- Mill v R (1988) 166 CLR 59
- Veen v R (No 2) (1988) 164 CLR 465
- R v Dodd (1991) 57 A Crim R 349
- R v Henry & Ors (1999) 46 NSWLR 346
- R v Ramos (2000) 112 A Crim R 339
- R v Duncan (1983) 9 A Crim R 354
- R v Crotty (Unreported, CCA, 28 February 1994)
- R v Whyte [2002] NSWCCA 343
- R v Lansdell (Unreported, CCA, 23 May 1996)
- R v Allpass (1993) 72 A Crim R 561
- R v Duroux (Unreported, CCA, 11 April 1991)
- R v Morris and Turner (Unreported, CCA, 10 March 1989)