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Court of Criminal Appeal 12 March 2003

R v Bahsa

[2003] NSWCCA 36

Also reported as 138 A Crim R 245
Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCING CROWN APPEAL AGAINST SENTENCE MULTIPLE OFFENCES ARMED ROBBERY DETAINING FOR ADVANTAGE

Citation: R v Bahsa [2003] NSWCCA 36
Court: NSW Court of Criminal Appeal
Date: 12 March 2003
Judges: Sheller JA, James J, Smart AJ

Background

The respondent pleaded guilty in the District Court to eleven offences committed over approximately three and a half weeks in early 2002. The offences included eight counts of armed robbery, one count of aggravated detaining for advantage (causing actual bodily harm), one count of robbery in company, and one offence of being carried in a conveyance without the owner's consent.

The armed robberies were carried out at various Sydney businesses using a kitchen knife with a blade approximately twenty centimetres long. The most serious conduct involved the abduction and detention of a seventeen-year-old victim, who was blindfolded, partially undressed, tied up, driven around Sydney, and had burning cigarettes stubbed out on his bare skin. The sentencing judge accepted the victim believed he would be killed.

Judge Tupman in the District Court imposed an effective total sentence of eight years, with an overall non-parole period of six years. The Crown appealed, contending the sentences were manifestly inadequate.

  • Whether the sentences imposed by the District Court were manifestly inadequate across the range of offences, including the guideline offence of armed robbery under R v Henry
  • Whether the sentencing judge correctly applied the principle from Pearce v The Queen requiring a separate and appropriate sentence to be fixed for each offence before considering cumulation and totality
  • How the principle of totality should operate when re-sentencing a respondent on a Crown appeal, including the benefit to be afforded to the respondent for double jeopardy

Decision

The Court of Criminal Appeal unanimously allowed the Crown appeal, finding the original sentences were seriously inadequate. James J, with whom Sheller JA and Smart AJ agreed, found that the sentencing judge had failed to fix appropriate individual sentences for each offence before applying totality considerations, contrary to the approach required by Pearce.

Sheller JA expressed particular concern about the treatment of the most serious offences. The guidelines in R v Henry suggested a head sentence range of four to five years for armed robbery in ordinary circumstances. Only one of the eight armed robbery charges approached that range at sentencing, and even that fell at the bottom of it. The detention offence, involving prolonged and degrading treatment of a teenage victim, attracted what Sheller JA described as a sentence that "failed to recognise in any meaningful way" the criminality involved.

Smart AJ agreed with the orders but added a reservation about the application of totality in exceptional multi-count cases. Where a large number of counts would, if made fully cumulative, produce a sentence extending beyond a normal life span, some flexibility in setting individual sentences to accommodate totality may remain available. His Honour was not prepared to close off that approach for truly exceptional cases, noting the tension that can arise between individual sentencing principles and a just overall result.

The Court also confirmed that, consistent with Everett v The Queen, a respondent on a Crown appeal is entitled to a discount because their liberty is placed in jeopardy a second time. Accordingly, the re-sentences imposed by the Court of Criminal Appeal were acknowledged to sit at the lower end of the appropriate range.

Orders Made

  • Crown appeal against sentences imposed on 1 November 2002 allowed
  • Sentences imposed on 1 November 2002 quashed
  • Respondent re-sentenced as follows:
  • Counts 1 to 7 (armed robbery): fixed term of three years each, commencing 18 February 2002, served concurrently
  • Count 11 (armed robbery): fixed term of four years commencing 18 February 2003
  • Count 8 (aggravated detaining for advantage): six years commencing 18 February 2007, with a non-parole period of three years expiring 17 February 2010
  • Count 9 (robbery in company): fixed term of two years commencing 18 February 2007
  • Count 10 (conveyance offence): fixed term of one year commencing 18 February 2007
  • Earliest parole eligibility date: 18 February 2010

Key Takeaways

  • The District Court's original sentences were found to be seriously inadequate, particularly given that most of the armed robbery sentences fell well below the four-to-five-year head sentence range indicated by the R v Henry guideline judgment.
  • Under Pearce v The Queen, a sentencing court must fix an appropriate sentence for each individual offence before turning to questions of cumulation or concurrence and then applying the totality principle. Collapsing those steps together is an error.
  • A respondent on a successful Crown appeal is entitled to a discount reflecting the double jeopardy involved in having their liberty placed at risk a second time, as confirmed in Everett v The Queen. The re-sentences imposed by the Court of Criminal Appeal were expressly set at the lower end of the appropriate range on that basis.
  • Smart AJ's reasons leave open the possibility that, in truly exceptional multi-count cases (such as those involving dozens of offences across many years), totality may properly influence the fixing of individual sentences where strict cumulation would produce an unjust result extending beyond any realistic life span.
  • The R v Henry guideline for armed robbery sets a reference range of four to five years as the appropriate head sentence in standard cases. Sentences substantially below that range risk being found manifestly inadequate on Crown appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(2)(b), 97(1), 154A(1)(b)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Everett v The Queen (1994) 181 CLR 295
- Pearce v The Queen (1998) 194 CLR 610
- R v Henry (1999) 46 NSWLR 346
- R v Baker [2000] NSWCCA 85
- R v Hammoud (2000) 118 A Crim R 66
- R v AEM [2002] NSWCCA 58
- R v Myers [2002] NSWCCA 162
- R v Finnie [2002] NSWCCA 533
- R v Fernando [2002] NSWCCA 28
- R v Sharma [2002] NSWCCA 142