AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 8 May 2003

Regina v Robert John Strong

[2003] NSWCCA 123

Also reported as 141 A Crim R 56
Public order & justice offences

Citation: Regina v Robert John Strong [2003] NSWCCA 123
Court: NSW Court of Criminal Appeal
Date: 8 May 2003
Judge(s): Sully J; Dunford J; Buddin J

Background

The applicant pleaded guilty in the Local Court to two charges under the Crimes Act 1900: intimidating a named victim over a prolonged period with intent to cause fear or mental harm, and stalking the same victim with the same intent. He was remanded to the District Court for sentence, where he also had two further matters taken into account on a Form 1: using offensive language outside the victim's home while intoxicated, and being found in unlawful custody of a concealed serrated knife in a public place.

The sentencing judge in the District Court, Freeman DCJ, imposed sentences on the stalking and intimidation charges and separately made a pronouncement under the Habitual Criminals Act 1957 (NSW), which enabled an additional period of imprisonment. The applicant had a significant criminal history, including prior stalking-related offending.

The applicant sought leave to appeal against both the substantive sentences and the Habitual Criminals Act pronouncement and sentence, arguing various errors in the sentencing process.

  • Whether the District Court erred by failing to allow any discount on the stalking sentence for the applicant's plea of guilty
  • Whether the sentences for intimidation and stalking were otherwise attended by error warranting appellate intervention
  • Whether the Habitual Criminals Act pronouncement itself was properly made
  • Whether the sentence imposed pursuant to that pronouncement was appropriate, including in light of principles of proportionality and fresh evidence not before the primary judge
  • What re-sentencing was appropriate having regard to the applicant's antecedents, the objective gravity of the offences, guilty pleas, and subsequent psychiatric and custodial evidence

Decision

The Court found that the District Court had erred by failing to give any discount for the applicant's plea of guilty in respect of the stalking offence. This established error enlivened the Court's jurisdiction to intervene and re-sentence. Buddin J noted it was surprising that no material at all had been adduced on the applicant's behalf before the sentencing judge.

On the Habitual Criminals Act proceedings, the Court granted leave to appeal against both the pronouncement and the sentence. The appeal against the pronouncement itself was dismissed, meaning the Court accepted that the applicant qualified as a habitual criminal under that legislation. However, the appeal against the sentence imposed pursuant to that pronouncement was allowed, and the Court substituted a fresh sentence.

In re-sentencing, the Court weighed the objective gravity of the offences, the applicant's extensive criminal history (invoking the principles from Veen v The Queen (No 2)), and the mitigating effect of the guilty pleas, which had spared the complainant from giving evidence. The Court also took into account fresh psychiatric evidence not before the primary judge, and the fact that the applicant was serving his sentence in strict protection, making his time in custody more burdensome than it would otherwise be.

The majority orders were those proposed by Sully J, with Dunford J agreeing and Buddin J expressing substantial agreement while preferring remittal to the District Court for re-sentencing on the substantive matters rather than direct re-sentencing by the Court of Criminal Appeal.

Orders Made

Substantive sentences (intimidation and stalking):
- Leave to appeal against both sentences granted; both sentences quashed
- Re-sentenced on Count 1 (intimidation) to 3 years imprisonment commencing 4 October 2000, expiring 3 October 2003; no non-parole period specified due to partial cumulation
- Re-sentenced on Count 2 (stalking) to 4.5 years imprisonment commencing 4 April 2003, expiring 3 October 2007, with a non-parole period of 2.5 years commencing 4 April 2003 and expiring 3 October 2005
- Registrar to forward medical reports urgently to the Commissioner of Corrective Services with a recommendation they be attached permanently to the applicant's departmental files

Habitual Criminals Act proceedings:
- Leave to appeal against the pronouncement granted; appeal against the pronouncement dismissed
- Leave to appeal against the sentence pursuant to the pronouncement granted; that appeal allowed
- Sentence quashed and applicant re-sentenced to 8 years imprisonment commencing 4 October 2000 and expiring 3 October 2008

Key Takeaways

  • A failure to allow any discount for a guilty plea constitutes a sentencing error capable of grounding appellate intervention, even where the objective gravity of the offending is considerable.
  • Under the principles affirmed in Veen v The Queen (No 2), an offender's antecedent history can properly assume considerable prominence in sentencing, particularly where it involves a pattern of similar conduct, though it does not override proportionality entirely.
  • Guilty pleas carry mitigating weight not only because they facilitate the administration of justice but also because they spare victims the ordeal of giving evidence, and both considerations are relevant to the sentencing exercise.
  • Fresh evidence, including psychiatric reports and information about the conditions under which an offender is serving their sentence (such as strict protection), can be taken into account on a re-sentencing exercise by an appellate court, even where that material was not before the primary judge.
  • The Court of Criminal Appeal confirmed the applicant's status as a habitual criminal under the Habitual Criminals Act 1957 (NSW) while nonetheless finding the sentence imposed pursuant to that Act required correction, illustrating that the pronouncement and the resulting sentence are distinct matters susceptible to separate review.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 562AB
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 33
- Summary Offences Act 1988 (NSW), ss 4(1)(b), 11C(1)
- Habitual Criminals Act 1957 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Inebriates Act 1912 (NSW)

Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Pearce v The Queen (1998) 194 CLR 610
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Cameron (2002) 187 ALR 65
- R v Sharma (2002) 54 NSWLR 300
- R v Engert (1995) 84 A Crim R 67
- R v Simpson (2001) 53 NSWLR 704
- McGarry v The Queen (2001) 207 CLR 121
- House v The King (1936) 55 CLR 499
- Reg v Perese [2001] NSWCCA 478
- Watson v The Superintendent, Metropolitan Reception Centre (1971) 1 NSWLR 67
- R v Malcolm (1908) 8 SR (NSW) 6