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Court of Criminal Appeal 18 March 2002

R v Raad

[2002] NSWCCA 75

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING ARMED ROBBERY SUBJECTIVE FEATURES

Citation: R v Raad [2002] NSWCCA 75
Court: NSW Court of Criminal Appeal
Date: 18 March 2002
Judge(s): Dunford J; Carruthers AJ

Background

The applicant, an 18-year-old man, pleaded guilty to multiple armed robbery offences committed in 2001. The first offence occurred in February, when he and a co-offender used a knife to rob a man in his car at Mortdale, taking $55 and a backpack. He was granted bail after that arrest.

While on bail, he committed two further armed robbery incidents on the same morning in June 2001, in Haymarket and on George Street in Sydney. These involved a replica rifle, a replica pistol, a knife, and an impersonation of a police officer. No property of significant value was taken in those incidents, and the intended victims in George Street refused to comply and reported the matter to police. The applicant was arrested nearby shortly afterwards.

The District Court sentenced him to a total of 6 years imprisonment with a non-parole period of 4 years, after applying a 25 percent discount from a starting point of 8 years for his early guilty pleas. The applicant sought leave to appeal against the sentences, primarily on the basis that the non-parole period did not adequately reflect his subjective circumstances.

  • Whether the District Court's starting point of 8 years imprisonment was within the appropriate sentencing range for the combined offending.
  • Whether the 25 percent discount applied for early guilty pleas was appropriate.
  • Whether the non-parole period of 4 years adequately reflected the applicant's youth, prior good character, and prospects of rehabilitation.

Decision

The Court of Criminal Appeal confirmed that the starting point of 8 years was within the range of appropriate sentencing discretion. Although the robberies were characterised as "quite amateur" in nature, involved replica rather than real weapons, and yielded minimal proceeds, the sentencing court was effectively dealing with three armed robberies to be served concurrently, along with additional matters on a Form 1. This justified a starting point somewhat above the 4 to 5 year range indicated by the guideline judgment in R v Henry for a single armed robbery.

The 25 percent discount for the early guilty pleas was also upheld as appropriate, leaving the confirmed head sentence of 6 years intact.

The Court found, however, that the non-parole period of 4 years did not give sufficient weight to the applicant's subjective circumstances. These included his youth (18 at the time of the offences), a virtually clean prior record, strong character references, the fact this was his first period of imprisonment, family difficulties that had contributed to his offending, and genuinely good prospects of rehabilitation. The Court reduced the non-parole period from 4 years to 3 years.

Orders Made

  • Extension of time to appeal granted.
  • Leave to appeal granted.
  • Appeal on the Form 1 matters dismissed.
  • Appeal on the indictment matters upheld.
  • Head sentence of 6 years on each indictment matter confirmed, to be served concurrently.
  • Non-parole period quashed and substituted with a non-parole period of 3 years, commencing 27 May 2001 and expiring 26 May 2004.

Key Takeaways

  • A starting point above the standard R v Henry guideline range of 4 to 5 years may be justified where the sentencing exercise involves multiple concurrent armed robbery sentences, even if individual offences are unsophisticated and yield little property.
  • Where a sentencing court finds special circumstances to depart from the statutory minimum non-parole period ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, the extent of that departure must adequately reflect the weight of all relevant subjective factors.
  • Youth, a prior clean record, first-time imprisonment, character evidence, and genuine rehabilitation prospects are capable of warranting a substantial reduction in the non-parole period, even where the head sentence is confirmed.
  • The Court of Criminal Appeal confirmed that committing further serious offences while on bail is an aggravating factor, and that offences separated by a significant time gap cannot be treated as a single instance of criminality for sentencing purposes.
  • Use of replica weapons, while still capable of terrifying victims, was noted as a distinguishing feature from offences involving real firearms, forming part of the overall assessment of objective seriousness.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 91(1) and 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on sentencing for armed robbery)