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Court of Criminal Appeal 30 April 2003

R v Marinos

[2003] NSWCCA 136

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE ROBBERY

Citation: R v Marinos [2003] NSWCCA 136
Court: New South Wales Court of Criminal Appeal
Date: 30 April 2003
Judge(s): Wood CJ at CL; Simpson J

Background

The applicant, a 22-year-old man, pleaded guilty in the District Court to robbery after snatching a bag from a 56-year-old woman walking in the street. The amount taken was small, but the victim was seriously frightened and traumatised. The offence was committed during a period of heroin addiction, and the applicant admitted to police that he intended to use the proceeds to purchase drugs.

The District Court sentenced the applicant to two years and three months imprisonment with a non-parole period of fifteen months. The sentencing judge applied a 25 per cent discount for the early plea and took into account the applicant's youth, steps toward rehabilitation, supportive family, and drug treatment efforts. This was the applicant's first full-time custodial sentence.

The applicant sought leave to appeal on the ground that the sentence was manifestly excessive, arguing that the sentencing judge had overstated the seriousness of the offence by framing it in terms equivalent to armed robbery and by incorrectly requiring exceptional circumstances before any non-custodial sentence could be considered.

  • Whether the sentencing judge erred by describing robbery, including bag snatching, as an offence of "utmost gravity" requiring "fully exceptional and unusual circumstances" to justify a non-custodial outcome, without qualification.
  • Whether the omission of the word "virtually" from the established sentencing principle materially overstated the position and constituted an error of law.
  • Whether the non-parole period of fifteen months was excessive having regard to the applicant's age and rehabilitation efforts.

Decision

The Court accepted that the sentencing judge's formulation of the applicable principle had slightly overstated the position. The established principle, as consistently stated in prior decisions of the Court, is that robbery, whether armed or unarmed, should be regarded as an offence of utmost gravity in "virtually" all circumstances. The omission of that qualifying word carried real significance, as it removed the limited space the principle preserves for non-custodial outcomes in exceptional cases.

The Court also accepted that armed robbery and robbery simpliciter are not identical in gravity, and that the objective seriousness of any robbery must be assessed on its own facts. However, the Court reaffirmed that bag snatching offences are regarded as particularly serious, given the threat they pose to ordinary citizens going about their daily lives. The authorities consistently treat such offences as warranting custodial sentences.

Despite finding that the head sentence did not warrant interference, the Court concluded that the non-parole period of fifteen months was excessive. The applicant's youth and genuine efforts to overcome his drug addiction, evidenced both before sentencing and by his conduct in custody, warranted a shorter non-parole period to encourage his rehabilitation. The Court reduced the non-parole period to nine months accordingly.

The Court treated the two-judge decision in Regina v Fraser with caution. It noted that a two-judge bench cannot lay down binding statements of principle qualifying earlier three-judge decisions, and that Fraser had itself received only limited approval from a subsequent two-judge bench.

Orders Made

  • Leave to appeal granted.
  • Non-parole period reduced to nine months, commencing 30 August 2002 and expiring 29 May 2003, upon which date the applicant was to be released on parole.
  • Otherwise, the appeal dismissed.

Key Takeaways

  • The correct formulation of the robbery sentencing principle in NSW is that such offences are regarded as of utmost gravity in "virtually" all circumstances, not "all" circumstances. The omission of that qualifier was found to overstate the law, even if it did not necessarily vitiate the sentence.
  • Armed robbery and robbery simpliciter are not to be treated as equivalent in gravity; the objective seriousness of each offence must be assessed on its own facts.
  • A two-judge bench of the Court of Criminal Appeal cannot authoritatively qualify or displace sentencing principles established by three-judge benches, limiting the precedential weight of Regina v Fraser.
  • Bag snatching offences are treated as a particularly serious category of robbery, given the harm and fear caused to victims in ordinary public settings, and consistently attract custodial sentences.
  • Rehabilitation efforts, youth, and conduct in custody can justify reduction of a non-parole period even where no error is established in the head sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)

Cases Cited:
- Regina v Bradley (NSWCCA, 26 October 1993)
- Regina v France (NSWCCA, 9 July 1992)
- Regina v Fraser [1999] NSWCCA 212
- Regina v Griggs [2000] NSWCCA 33
- Regina v Hall (NSWCCA, 28 September 1995)
- Regina v Kingsbeer (NSWCCA, 29 July 1998)
- Regina v Murray (NSWCCA, 11 September 1986)
- Regina v Otto [1999] NSWCCA 190
- Regina v Ranse (NSWCCA, 8 August 1994)
- Regina v Redmond (1990) 47 A Crim R 180
- Regina v Sweetman [2000] NSWCCA 228
- Regina v Valentini (1989) 46 A Crim R 23