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Court of Criminal Appeal 19 November 2003

REGINA v STIRRAT

[2003] NSWCCA 350

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING NO QUESTION OF PRINCIPLE

Citation: Regina v Stirrat [2003] NSWCCA 350
Court: NSW Court of Criminal Appeal
Date: 19 November 2003
Judge(s): Handley JA, Grove J, Adams J

Background

The appellant pleaded guilty in the Newcastle Local Court to four robbery offences committed over a 14-day period in July and August 2002: two counts of armed robbery and two counts of simple robbery. Two further offences of demanding money with menaces were taken into account on a Form 1 schedule. The total amount taken across the offences was approximately $3,665, and one robbery involved a knife.

The appellant was sentenced in the Newcastle District Court by Nader ADCJ on 4 December 2002. A combination of consecutive and partly concurrent sentences was imposed, producing a total head sentence of five years and eight months. The appellant, who appeared in person before the Court of Criminal Appeal, sought leave to appeal against that sentence on multiple grounds.

  • Whether the sentencing judge erred by failing to apply an "Ellis discount" for the guilty plea
  • Whether the total sentence was manifestly excessive, having regard to the totality principle
  • Whether the absence of a pre-sentence, psychological, or psychiatric report constituted a sentencing error
  • Whether the sentencing judge was disqualified from hearing the matter because he was a customer of the victim building society
  • Whether the structure of consecutive and concurrent sentences was inconsistent with the approach taken in R v Carter

Decision

The Court dismissed each ground of appeal. On the Ellis discount, the Court found there was no basis for such a reduction. The offences occurred within a fortnight, the appellant made no attempt to disguise himself, and video footage led quickly to his identification. Detection and arrest were, in the Court's view, inevitable, and there was no suggestion the offences would have been difficult to prove without the guilty plea.

On the absence of reports, the Court noted that the appellant was legally represented throughout the sentencing proceedings and no application was made for any such reports. There was also substantial information before the sentencing judge, including the appellant's own evidence, evidence from his brother, and evidence from a Salvation Army Prison Chaplain and a drug and alcohol counsellor. Additionally, a full-time custodial sentence had been accepted as inevitable, which further reduced the practical relevance of any such reports.

The Court rejected the disqualification argument, finding that a judge's status as a customer of a financial institution that is the victim of a robbery does not, of itself, disqualify the judge from presiding. The matter had been disclosed during proceedings and no objection was taken at the time by the appellant's then-counsel.

On totality, the Court confirmed that the sentencing judge applied the principle in R v Pearce correctly: a discrete sentence must be imposed for each offence, and the overall effect must then be assessed to ensure the aggregate does not crush the offender having regard to their total criminality. The sentences fell within the range established by R v Henry for armed robbery by a young offender with no significant prior record who pleads guilty. Adams J clarified that the passage from R v Carter relied upon by the appellant was not a statement of general principle but a case-specific observation, and that making all sentences concurrent across six offences would have distorted rather than appropriately reflected the appellant's overall culpability.

Orders Made

  • Application for leave to appeal dismissed

Key Takeaways

  • An Ellis discount is only available where an offender's guilty plea reveals offences not known to authorities, or where proof would have been substantially difficult without the plea. Where detection was inevitable, no such discount arises.
  • A judge's status as a customer of a bank or building society that is a victim in a robbery does not disqualify the judge from sentencing in that matter, particularly where the issue was disclosed and no contemporaneous objection was raised.
  • No sentencing error arises from the absence of pre-sentence or psychiatric reports where the offender was legally represented, no application for such reports was made, and sufficient background material was already before the court.
  • In dismissing the appeal, the Court confirmed that R v Carter did not establish a general principle requiring all sentences arising from a short course of conduct to run concurrently. The passage in question was specific to the facts of that case.
  • Under the totality principle confirmed in R v Pearce, a sentencing court must impose discrete sentences for each offence before adjusting their cumulative effect, rather than collapsing all criminality into one extended sentence.

Legislation and Cases Referenced

Cases:
- R v Carter [2001] NSWCCA 245
- R v Henry (1999) 46 NSWLR 346
- R v Pearce (1998) 194 CLR 610

Legislation:
- Justices Act (NSW), s 51A (committal for sentence to the District Court)