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Court of Criminal Appeal 5 November 2003

REGINA v. KELLY

[2003] NSWCCA 317

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL SENTENCE ARMED ROBBERY AGGRAVATION ASSERTED DURESS

Citation: [2003] NSWCCA 317
Court: NSW Court of Criminal Appeal
Date: 5 November 2003
Judges: Greg James J, Howie J, Smart AJ

Background

The appellant pleaded guilty in the District Court to assault with intent to rob whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900. The offence involved entering the Byron Bay Services Club armed with an extendable baton, striking an employee on the head, and attempting to take money from a cash drawer before fleeing. The maximum penalty for the offence was 25 years imprisonment.

Judge Ducker sentenced the appellant to four years imprisonment, with a non-parole period of two years, commencing 27 September 2002. The appellant had no prior criminal record, had entered an early plea of guilty, and had psychiatric difficulties that were placed before the sentencing court.

The sentencing proceedings were interrupted mid-delivery when the appellant's counsel raised a claim that he had been coerced by a third party into committing the offence. After an adjournment, the appellant chose not to pursue that enquiry further and did not withdraw his plea. The sentencing judge nonetheless considered the full circumstances, including the mental illness material, before imposing sentence.

  • Whether the sentence of four years imprisonment with a two-year non-parole period was manifestly excessive
  • Whether the sentencing judge failed to properly apply the guideline judgment in Henry & Ors (1999) 46 NSWLR 346 to the armed robbery
  • Whether the sentencing judge failed to give sufficient weight to decisions addressing the relevance of mental illness to sentencing
  • Whether the onerous conditions of the appellant's confinement warranted a reduction in sentence
  • Whether the appellant's asserted duress and prospects of rehabilitation were adequately considered

Decision

Greg James J (with whom Howie J and Smart AJ agreed) found no error in the sentencing judge's exercise of the sentencing discretion. The court noted that the sentence, on its face, appeared "remarkably lenient" given the objective seriousness of the offence. That leniency was explained by the substantial credit the sentencing judge gave for the early guilty plea and for findings made "dramatically in [the appellant's] favour" on the question of mental illness.

On the mental illness ground, the court was satisfied that the sentencing judge had considered the psychiatric material deeply and correctly, even though he had not expressly articulated the precise legal principles or cited specific authorities. The sentence itself demonstrated that adequate weight had been given to mental illness alongside the early plea and the appellant's lack of prior record.

Regarding the duress claim, credibility remained a matter for the sentencing judge to evaluate. The court observed that the judge had afforded every opportunity, including adjournments, for supporting material to be placed before him. The appellant ultimately elected not to pursue the claim further, and the judge's assessment of the competing accounts was open on the evidence.

The court granted leave to appeal, given that the matter had been fully argued, but dismissed the appeal. It was not persuaded that any lesser sentence or non-parole period was warranted in law.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is not required to expressly cite case law on mental illness or articulate the precise principles applied, provided the sentence itself demonstrates that the relevant matters were taken into account.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a lenient sentence, explicable only by significant mitigating factors such as early plea and mental illness, is itself evidence that those factors were properly weighed.
  • Credibility findings on disputed matters such as duress are for the sentencing judge to make, and the Court of Criminal Appeal will not readily disturb them, particularly where the judge provided adequate procedural opportunities for the defendant to put material before the court.
  • Under s 97(2) of the Crimes Act 1900, assault with intent to rob whilst armed with a dangerous weapon carries a maximum of 25 years imprisonment; the guideline in Henry applies to sentencing in this category.
  • No error was established merely because the sentencing judge did not separately address each authority cited by the appellant, where the overall sentence reflected a sound and balanced exercise of the sentencing discretion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(2)
- Criminal Appeal Act 1912 (NSW)

Cases
- Henry & Ors (1999) 46 NSWLR 346 (armed robbery guideline judgment)
- Letteri (NSWCCA, unreported, 18 March 1992)
- Israil [2002] NSWCCA 255
- Nelson [2002] NSWCCA 463
- Thomson & Houlton (2000) 49 NSWLR 383