Citation: Regina v Hooper [2004] NSWCCA 10
Court: New South Wales Court of Criminal Appeal
Date: 11 February 2004
Judge(s): James J, Howie J, Smart AJ
Background
The appellant pleaded guilty in the District Court to four counts arising from a series of offences committed over three weeks in April and May 2001. The offences included two armed robberies of newsagencies, an assault with intent to rob at a third newsagency, and discharging a firearm at police officers during a high-speed pursuit. A co-offender, Adams, was the person who entered the premises and wielded the rifle in each incident; the appellant drove the getaway vehicle.
Judge Berman SC sentenced the appellant in the District Court on 13 December 2002. The sentences were made partly cumulative, producing a total effective term of sixteen years with a minimum non-parole period of twelve years. The appellant applied to the Court of Criminal Appeal for leave to appeal against those sentences.
The offences were notable for their violence. In the first robbery a shot was fired near the victim's head; in the second robbery at the newsagency the rifle discharged during a struggle, wounding a staff member; and in the third robbery a shot was fired at a petrol station employee. During the police pursuit, two shots were fired at the pursuing officers from the passenger window.
Legal Issues
- Whether the second count properly charged an offence under s 33 of the Crimes Act (maximum 25 years) rather than s 33A(1) (maximum 14 years), and whether any error under the De Simoni principle arose from the sentencing approach to that count.
- Whether the sentencing judge erred in relying on aggravating circumstances not reflected in the charges, contrary to the principle in The Queen v De Simoni.
- Whether the sentencing judge made errors in assessing parity between the appellant's sentence and any sentence likely to be imposed on the co-offender Adams.
- Whether a finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act was warranted, and whether the non-parole period was appropriately structured.
- Whether the sentences were, in all the circumstances, manifestly excessive.
Decision
The Court considered the proper characterisation of the second count at length. James J concluded that the count was properly charged under s 33 of the Crimes Act, which carried a maximum of twenty-five years, rather than under s 33A(1). This finding was significant because the sentencing judge's approach to that count needed to be assessed against the correct statutory framework and maximum penalty.
On the De Simoni ground, the Court examined whether the sentencing judge had impermissibly taken into account circumstances of aggravation that would have warranted a conviction for a more serious offence than that charged. The Court found no relevant error in the sentencing judge's reasoning on this issue.
The parity ground was also rejected. The Court accepted that any comparison with a sentence that might be imposed on the co-offender Adams was of limited utility at that stage, and no appellable error in the parity assessment was established.
Turning to special circumstances and manifest excess, James J upheld the sentencing judge's finding that there were no special circumstances justifying an extension of the parole period beyond the statutory proportion. The Court accepted the Crown's characterisation of the offences as instances of extreme lawlessness: each of the three robbery counts involved a loaded firearm that was actually discharged, one victim was wounded, and the firearms count involved shots fired at police. The appellant's subjective circumstances provided no basis for leniency beyond his guilty pleas, and the sentences were held not to be manifestly excessive.
Orders Made
- Leave to appeal granted.
- Appeal against sentence dismissed.
Key Takeaways
- Discharging a loaded firearm during each of multiple armed robberies, and wounding a victim in one instance, placed these offences at a level of objective gravity that the Court of Criminal Appeal found supported the sentences imposed, even after accounting for the guilty pleas.
- The De Simoni principle, which prohibits a sentencing court from taking into account circumstances of aggravation that would have warranted a conviction for a more serious offence, was examined in the context of the s 33 versus s 33A(1) characterisation issue; no breach was established on the facts.
- In dismissing the parity ground, the Court confirmed that comparing an appellant's sentence with a co-offender's prospective sentence carries inherent limitations when that co-offender has not yet been sentenced.
- No special circumstances existed merely because the sentences were cumulative and lengthy; the sentencing judge's reasoning that the parole period was sufficient to meet rehabilitation and supervision purposes was accepted as sound.
- A getaway driver who participates in a series of armed robberies involving the repeated discharge of firearms can receive sentences reflecting the full objective criminality of those offences, even where another party physically wielded the weapon.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), ss 33, 33A(1), 97(2)
- Crimes (Sentencing Procedure) Act (NSW), s 44(2)
Cases:
- The Queen v De Simoni (1981) 147 CLR 383
- Lowe v The Queen (1984) 154 CLR 606
- R v Booth (unreported, CCA, 12 November 1993)
- R v Channells (unreported, CCA, 30 September 1997)
- R v JB [1999] NSWCCA 93
- R v Hector [2003] NSWCCA 196
- R v Young [2003] NSWCCA 276
- R v Quatami (2001) 127 A Crim R 369