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Court of Criminal Appeal 1 October 2003

R v Young

[2003] NSWCCA 276

Theft & property
CRIMINAL LAW: SENTENCE PLEA OF GUILTY TO ALTERNATIVE CHARGE FACTORS ON RE SENTENCE

Citation: R v Young [2003] NSWCCA 276
Court: NSW Court of Criminal Appeal
Date: 1 October 2003
Judges: Hidden J, Greg James J, Smart AJ

Background

The applicant pleaded guilty in the District Court at Broken Hill to stealing from the person, after the Crown accepted that plea in satisfaction of an indictment that had charged robbery as the primary offence and stealing from the person in the alternative. The offence arose from an incident in which the applicant, in an intoxicated and erratic state following prolonged amphetamine and alcohol use, entered the campsite of four teenage boys and, after threatening behaviour involving a knife and verbal abuse, took a mobile phone and money from one of the boys.

The sentencing judge imposed a four-year head sentence with an eighteen-month non-parole period, dating from arrest on 22 July 2002. The applicant sought leave to appeal, arguing that the sentencing process was flawed in several respects.

  • Whether the sentencing judge impermissibly blurred the distinction between robbery and stealing from the person, effectively sentencing the applicant for the more serious charge to which he had not pleaded guilty
  • Whether the judge's failure to refer to the plea of guilty constituted a sentencing error
  • Whether the head sentence of four years was excessive in the circumstances
  • What the appropriate head sentence and non-parole period should be on re-sentence

Decision

The Court found some force in the submission that the sentencing judge had not clearly maintained the distinction between robbery and stealing from the person. The remarks on sentence referenced the knife, the victims' fear, and included the statement that the applicant "robbed" the victim. The Crown argued that the use of the word "robbed" was merely colloquial, relying on the Court of Criminal Appeal's approach in R v Kerr-Bell and observations in R v Hua that too much should not be made of the distinction between the two offences.

The Court accepted that the failure to reference the plea of guilty in the sentencing remarks was an error. A plea of guilty is a material consideration in sentencing, and its omission from the judge's reasons supported the conclusion that the sentencing process miscarried.

On the question of the head sentence, the Court concluded that four years was excessive. Relevant considerations on re-sentence included the applicant's significantly disadvantaged background, his longstanding drug dependency, the emotional upheaval preceding the offence, his irrational state at the time (attributable to substance use and sleep deprivation), and his expressed remorse. The Court also noted an affidavit sworn shortly before the appeal hearing indicating the applicant had engaged productively with educational and rehabilitative programs while in custody.

The Court reduced the head sentence to three years but confirmed the non-parole period of eighteen months. It accepted that the non-parole period could not be reduced further, even allowing for special circumstances, because it needed to reflect the seriousness of the offending and the applicant's prior record, which included convictions for armed robbery and other violent offences.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Head sentence of four years quashed and replaced with a sentence of three years imprisonment, dating from 22 July 2002
  • Non-parole period of eighteen months confirmed, expiring 21 January 2004
  • Applicant directed to be released on 21 January 2004
  • Applicant ordered to be subject to the supervision of the Probation and Parole Service for the entirety of the parole period

Key Takeaways

  • A sentencing judge's failure to mention a plea of guilty in remarks on sentence constitutes a material error capable of warranting appellate intervention, as the plea is a significant mitigating factor that must be taken into account.
  • Where a judge sentences an offender for a lesser alternative charge but the remarks on sentence repeatedly reference elements of the more serious charge, there is a risk the sentencing process will be found to have miscarried, even if the distinction between the two offences is narrow.
  • Both robbery and stealing from the person carry the same maximum penalty under the Crimes Act, and prior authority holds that courts should not place excessive weight on the technical distinction between the two offences when describing the surrounding circumstances.
  • Reducing a head sentence does not automatically require reducing the non-parole period; the non-parole period must still be of sufficient length to reflect the offender's criminality, even where special circumstances exist.
  • An extended parole period is not a legitimate justification for imposing a head sentence beyond what the overall criminality of the offence warrants.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), including s 94 (robbery and stealing from the person)
- Crimes (Sentencing Procedure) Act (NSW), ss 50(1), 51(1A)
- Criminal Appeal Act (NSW)

Cases
- R v Hua [2002] NSWCCA 384
- R v Delk (1999) 46 NSWLR 340
- R v Kerr-Bell (CCA, unreported, 13 February 1991)
- R v McCarroll [1999] NSWCCA 237
- R v Dib [2003] NSWCCA 117
- R v Crombie [1999] NSWCCA 297
- R v Simpson (2001) 53 NSWLR 704
- R v Cardoso [2003] NSWCCA 15