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Court of Criminal Appeal 19 August 2003

Regina v Anissa Maude Stanley

[2003] NSWCCA 233

Assault & violenceTheft & property

Citation: Regina v Anissa Maude Stanley [2003] NSWCCA 233
Court: NSW Court of Criminal Appeal
Date: 19 August 2003
Judge(s): Spigelman CJ, Sully J, Hidden J

Background

The appellant pleaded guilty in the District Court at Dubbo to assault with intent to rob in company, contrary to s 97(1) of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of 20 years' imprisonment. The sentencing judge imposed a term of three years' imprisonment with a non-parole period of two years.

The facts involved the appellant luring a victim away from a shopping area in Dubbo under the pretence of obtaining cheap beer, while two co-offenders remained concealed nearby. The three then attacked the victim, threw him to the ground, and attempted to take his wallet. Police were already observing the scene and apprehended all three. The victim suffered abrasions.

The appellant sought leave to appeal against her sentence on seven grounds, including errors in applying the Henry guideline judgment, inadequate weight given to her Aboriginality and youth, disparity with a juvenile co-offender's sentence, and manifest excess.

  • Whether the guideline judgment in R v Henry (1999) 46 NSWLR 346 applies to the offence of assault with intent to rob under s 97, or is confined to completed robbery offences
  • Whether the sentencing judge gave adequate weight to the appellant's Aboriginal background and associated disadvantage
  • Whether the appellant's youth was adequately reflected in the sentence
  • Whether the disparity between the appellant's sentence and that of the juvenile co-offender gave rise to a justifiable sense of grievance
  • Whether the characterisation of the appellant as a "ringleader" was reasonably open on the evidence
  • Whether the finding of special circumstances was adequately reflected in the non-parole period
  • Whether the sentence was manifestly excessive

Decision

Ground 1 (Henry guidelines): The Court rejected the argument that Henry had no application to assault with intent to rob. Sully J reasoned that Parliament had expressly grouped assault with intent to rob with other robbery-type offences under s 97, all attracting the same maximum penalty. The Court distinguished R v Cross [2002] NSWCCA 172, finding that case was confined to its own facts, where the sentencing judge had wrongly sentenced an offender for a completed offence rather than an attempt. No such error occurred here. The Henry characteristics applied, with appropriate adaptation, to the s 97 offence.

Grounds 2 and 3 (Aboriginality and youth): The Court acknowledged the sentencing judge was aware of both the appellant's Aboriginal background and her youth. However, the evidence placed before the sentencing judge on these matters was described as very sparse. The Court was not persuaded that these factors had been inadequately considered given the limited material available.

Grounds 4 and 5 (disparity and ringleader): The Court found the characterisation of the appellant as the ringleader was reasonably open on the evidence, given her role in luring the victim and arranging the co-offenders. The disparity with the juvenile co-offender's sentence did not give rise to an unjustifiable sense of grievance, as the juvenile's circumstances were materially different.

Grounds 6 and 7 (special circumstances and manifest excess): The sentencing judge had in fact adjusted the non-parole period downward by three months to reflect special circumstances, including youth and rehabilitation prospects. The Court accepted this was within the range of the sound exercise of sentencing discretion. The sentence was not manifestly excessive given the objective seriousness of an unprovoked group attack on a member of the public with the intent to rob.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • The Henry guideline judgment is not confined to completed robbery offences. The Court of Criminal Appeal confirmed it applies, with appropriate adaptation, to the offence of assault with intent to rob whilst in company under s 97 of the Crimes Act 1900 (NSW).
  • R v Cross [2002] NSWCCA 172 does not establish a general principle excluding Henry from attempted or incomplete robbery-type offences. The Court confined that decision to its particular facts.
  • Where evidence placed before a sentencing court on mitigating factors such as Aboriginality and youth is sparse, an appellate court will be reluctant to find that the sentencing judge gave those factors inadequate weight.
  • Disparity between an adult offender's sentence and that of a juvenile co-offender will not necessarily give rise to a justifiable sense of grievance, particularly where the juvenile's personal circumstances differ materially from those of the adult.
  • In dismissing the appeal, the Court affirmed that an unprovoked group attack on a member of the public, with intent to rob, is objectively serious and warrants a sentence that reflects that gravity.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Criminal Appeal Act 1912 (NSW), s 6AA
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Henry (1999) 46 NSWLR 346
- Reg v Cross [2002] NSWCCA 172
- Reg v Pitt [2001] NSWCCA 125
- Reg v Pham and Ly (1991) 55 A Crim R 128