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Court of Criminal Appeal 12 December 2003

R v Smith

[2003] NSWCCA 381

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING ROBBERY AND AGGRAVATED ROBBERY

Citation: R v Smith [2003] NSWCCA 381
Court: NSW Court of Criminal Appeal
Date: 12 December 2003
Judge(s): Sully J, Barr J, Newman AJ

Background

The respondent pleaded guilty to five offences committed over a three-month period in early 2002: one attempted robbery in company, three robberies in company, and one aggravated robbery while armed with a dangerous weapon. The offences involved coordinated attacks on bank branches across metropolitan Sydney, including at Kensington, Cronulla, Randwick, Annandale, and Bankstown. Physical violence was used against staff and customers in several incidents, and the total cash stolen exceeded $150,000.

At the time of all five offences, the respondent was on parole from an earlier District Court sentence for robbery in company. Following his arrest in May 2002, the Parole Board revoked his parole and ordered him to serve the outstanding balance of that earlier sentence.

In June 2003, the sentencing judge in the District Court imposed sentences resulting in an effective head sentence of seven years and six months with a non-parole period of five years and six months. The Director of Public Prosecutions appealed under section 5D of the Criminal Appeal Act, arguing the sentences were manifestly inadequate.

  • Whether the sentences imposed in the District Court were manifestly inadequate having regard to the objective seriousness of the offences
  • Whether the sentencing judge gave proper weight to the respondent's commission of the offences while on parole
  • How the principle of totality applied when structuring partially accumulated sentences across five separate offences
  • What discount was appropriate for the respondent's guilty pleas and subjective circumstances, including prospects of rehabilitation

Decision

The Court of Criminal Appeal found that the District Court's sentences were manifestly inadequate. Barr J, who gave the leading judgment (with Sully J and Newman AJ agreeing), noted that the five offences were serious examples of their kind, involved planning, the use of violence, and were committed in breach of the respondent's parole obligations. These factors warranted substantially heavier sentences than those imposed below.

The Court accepted that some credit was due to the respondent for his guilty pleas, which were entered at varying stages of the proceedings, and for other subjective features the sentencing judge had identified. The Court also recognised the respondent's need for a longer parole period than usual to support his rehabilitation, which justified a parole period exceeding the standard 25 per cent of the head sentence.

Applying the totality principle, the Court restructured the sentences so they ran with partial accumulation. The resulting effective head sentence was fifteen years, with an overall non-parole period of nine years, both calculated from the date of the original sentencing on 13 June 2003. No non-parole periods were fixed for the first three sentences, while adjusted non-parole periods were fixed for the fourth and fifth. The respondent's earliest parole eligibility date was declared as 12 June 2012.

Orders Made

  • The appeal was allowed and the District Court sentences were quashed.
  • In substitution, the following sentences were imposed:
  • Attempted robbery in company (14 February 2002): six years and six months imprisonment commencing 13 June 2003; no non-parole period fixed.
  • Robbery in company (18 February 2002): eight years imprisonment commencing 13 June 2004; no non-parole period fixed.
  • Robbery in company (7 March 2002): six years and six months imprisonment commencing 13 June 2005; no non-parole period fixed.
  • Robbery in company (28 March 2002): eight years imprisonment commencing 13 June 2006; non-parole period of six years expiring 12 June 2012.
  • Aggravated robbery in company (17 May 2002), with additional matters taken into account under section 32 of the Crimes (Sentencing Procedure) Act: eleven years imprisonment commencing 13 June 2007; non-parole period of five years expiring 12 June 2012.
  • The respondent was declared eligible for release on parole on 12 June 2012.

Key Takeaways

  • The Court of Criminal Appeal confirmed that committing serious robbery offences while on parole is a significant aggravating factor that must be afforded substantial weight at sentencing.
  • A manifestly inadequate sentence may be quashed on Crown appeal under section 5D of the Criminal Appeal Act, with the appellate court substituting its own sentence.
  • Under the totality principle, courts may structure partially accumulated sentences by declining to fix non-parole periods on some offences while adjusting non-parole periods on others, so that the combined effect is proportionate to the overall criminality.
  • Where rehabilitation prospects support it, a sentencing court may fix a parole period that exceeds the standard 25 per cent of the head sentence, provided reasons are given.
  • Guilty pleas, even where entered at different stages across multiple matters, remain a relevant mitigating factor, though their weight is reduced in the context of a Crown appeal against manifest inadequacy.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act, s 5D
- Crimes (Sentencing Procedure) Act, ss 32, 44

Cases:
- Regina v Henry (1999) 46 NSWLR 346
- Pearce v The Queen (1998) 194 CLR 610
- Regina v Thomson and Houlton (2000) 49 NSWLR 383