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Court of Criminal Appeal 21 March 2003

R v Roberts

[2003] NSWCCA 67

Assault & violenceTheft & property

Citation: R v Roberts [2003] NSWCCA 67
Court: NSW Court of Criminal Appeal
Date: 21 March 2003
Judge(s): Studdert J; Shaw J

Background

The applicant was convicted in the District Court of two counts of armed robbery following a jury trial. He had been acquitted on a third count. Both offences occurred on the same afternoon in March 2001, roughly fifteen minutes apart, when the applicant rode his motorbike to two separate pharmacies in western Sydney, entered each while disguised and carrying a knife, and demanded money and drugs from staff.

Nield DCJ sentenced the applicant to a fixed term of four years and six months for the first offence and six years with a four-year non-parole period for the second, with the sentences partly concurrent and partly cumulative. The overall effect was a non-parole period of six years, with a further two years of parole eligibility.

The applicant sought leave to appeal against sentence in the Court of Criminal Appeal, arguing the total sentence was manifestly excessive and that insufficient weight had been given to the fact that both offences formed part of a single, continuous episode of criminality.

  • Whether the total sentence was manifestly excessive in light of the objective and subjective circumstances.
  • Whether the sentencing judge failed to give adequate weight to the proximity in time between the two offences (approximately fifteen minutes apart) when structuring the concurrent and cumulative components.
  • Whether statistical sentencing data established that the sentences fell outside an appropriate range.

Decision

The Court of Criminal Appeal rejected the submission that the sentences were manifestly excessive. Studdert J found that the offences were objectively serious: they were planned, involved a weapon, targeted vulnerable people in pharmacies, and were carried out in disguise. The applicant's age, his plea of not guilty, and his criminal record all distinguished his case from the more favourable sentencing range discussed in the guideline judgment of R v Henry (1999) 46 NSWLR 346.

On the statistical arguments, the Court was cautious. It noted that Judicial Commission data does not account for accumulation of sentences and records only the principal offence. The Court reaffirmed, citing R v Hayes [2001] NSWCCA 410, that the upper limit of any statistical range is not the ceiling for sentencing: the true upper limit is the maximum penalty set by Parliament, which under s 97(1) of the Crimes Act was twenty years imprisonment for each offence.

The Court also rejected the argument that the close temporal proximity of the two offences required entirely concurrent sentences. Studdert J drew a comparison with R v Gorman [2002] NSWCCA 516, where partially cumulative sentences were upheld for multiple offences against the same victim committed within an hour. These were discrete offences affecting different victims at different locations, and the sentencing judge had correctly applied the totality principle by determining an appropriate sentence for each offence before structuring the overall term. Shaw J agreed, characterising the sentence as towards the upper limit of the appropriate range but not outside it.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Judicial Commission statistics on sentencing ranges must be applied with care: they do not account for cumulation of sentences across multiple counts, and the true sentencing ceiling is the statutory maximum, not the top of a statistical distribution.
  • Where multiple offences are committed close together in time, entirely concurrent sentences are not automatically required. Discrete offences affecting different victims at different locations may properly attract partially cumulative sentences, subject to the totality principle.
  • The Court of Criminal Appeal confirmed that the totality principle, as informed by Pearce v The Queen (1998) 194 CLR 610, requires a sentencing judge to assess each offence individually and then adjust the overall term to reflect what is just, rather than simply imposing concurrent terms by default.
  • In dismissing the appeal, the Court treated the applicant's plea of not guilty, his prior criminal record, and his age as factors placing the case outside the more favourable range contemplated by the R v Henry guideline.
  • Statistical comparisons that fail to account for plea (guilty versus not guilty) have limited utility in assessing whether a sentence is manifestly excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (armed robbery; maximum penalty twenty years imprisonment)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Henry (1999) 46 NSWLR 346
- R v Hayes [2001] NSWCCA 410
- R v Gorman [2002] NSWCCA 516
- R v Challis [2003] NSWCCA 48