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Court of Criminal Appeal 27 March 2003

R v Tozer

[2003] NSWCCA 72

Assault & violenceTheft & propertyTraffic & driving
CRIMINAL LAW APPEAL AGAINST SENTENCE TWO ARMED ROBBERIES DRIVING MOTOR VEHICLE WITHOUT CONSENT WHETHER SENTENCES EXCESSIVE APPLICATION OF PEARCE V THE QUEEN

Citation: Tozer v R [2003] NSWCCA 72
Court: NSW Court of Criminal Appeal
Date: 27 March 2003
Judge(s): Studdert J; Shaw J

Background

The appellant pleaded guilty in the Local Court to two counts of robbery while armed with an offensive weapon and one count of driving a motor vehicle without consent. He maintained those pleas when the matter moved to the District Court for sentencing.

The two armed robberies occurred on 15 and 18 December 2001, three days apart. Both followed a similar pattern: the appellant and a co-offender drove to a retail store in a stolen vehicle, entered wearing disguises, and threatened staff with weapons (a hunting knife carried by the appellant, and a tool disguised to resemble a firearm carried by the co-offender) before taking cash and fleeing. The later robbery on 18 December, at a video outlet in Carlingford, led to police pursuit and the appellant's arrest. He co-operated during his subsequent police interview.

In the District Court, Bellear DCJ sentenced the appellant to a fixed term of three years and six months for the first armed robbery, two years (concurrent) for the driving offence, and five years and six months cumulative for the second armed robbery, with a non-parole period of three years and six months. The aggregate sentence produced a total term of seven and a half years with an effective non-parole period of five and a half years. The appellant sought leave to appeal on the ground that the sentences were excessive.

  • Whether the sentencing judge adequately discounted the sentences to reflect the utilitarian value of the guilty pleas and the appellant's remorse
  • Whether the sentencing judge was required to apply an R v Ellis allowance (a further reduction available where an offender's co-operation with police assists the prosecution of others) in relation to the first armed robbery
  • Whether the principle from Pearce v The Queen (requiring a court to consider the overall effect of cumulative sentences) was properly applied
  • Whether the sentences gave rise to a justifiable sense of grievance when compared with the lesser sentences imposed on the co-offender McNamara (the parity ground)

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Studdert J (with Shaw J agreeing) acknowledged what he characterised as shortcomings in how the sentencing judge expressed his reasons on certain grounds, but concluded that those deficiencies did not require the sentences to be disturbed.

On the Ellis allowance question, the Court found it was not established on the material before it that the appellant's co-operation had materially assisted in the prosecution of others in connection with the first robbery, and no allowance was therefore warranted on that basis.

On parity, the Court noted that McNamara was sentenced only for offences arising from the single incident on 18 December 2001, and that additional factors were taken into account against McNamara (including breaches of existing bonds). The appellant, by contrast, faced two separate armed robbery offences, meaning his total criminality was materially greater. A reasonable observer would not regard any grievance on the part of the appellant as justified.

Applying the test under s 6(3) of the Criminal Appeal Act, the Court confirmed it must form a positive view that some other sentence was warranted in law before interfering. Having regard to the seriousness of the offences, the degree of planning, the vulnerability of the victims, and the appellant's overall criminality, the Court was not so satisfied. The aggregate outcome, including the non-parole period, was one the Court declined to disturb.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that identified shortcomings in a sentencing judge's expressed reasons do not automatically warrant intervention; the appellate court must form a positive view under s 6(3) of the Criminal Appeal Act that a different sentence was warranted in law.
  • A parity argument will not succeed where the co-offender's lesser sentence is explicable by a materially different criminal profile, including fewer offences and additional aggravating factors operating against the co-offender.
  • An R v Ellis allowance (a sentencing discount for co-operation that assists prosecution of others) requires an evidential foundation that the co-operation actually assisted in the prosecution of another person; the allowance is not automatic simply because an offender co-operated with police.
  • Under Pearce v The Queen, cumulative sentences must be assessed for their combined effect, but the principle does not require a reduction where the aggregate outcome is proportionate to the offender's total criminality across multiple serious offences.
  • Significant planning (use of stolen vehicles, disguises, purpose-brought weapons and bags) and the vulnerability of victims in retail settings were treated as features that elevated the objective gravity of each armed robbery.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 154A, 117
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Lowe v The Queen (1984) 154 CLR 606
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v The Queen (1997) 189 CLR 295
- R v Ellis (1986) 6 NSWLR 603
- R v Henry (1999) 46 NSWLR 346
- R v Simpson (2001) 53 NSWLR 704
- R v Thompson (2000) 49 NSWLR 383
- R v Winchester 58 A Crim R 345
- Ryan v The Queen (2001) 206 CLR 267