Citation: Regina v Snider [2004] NSWCCA 134
Court: NSW Court of Criminal Appeal
Date: 11 May 2004
Judge(s): Wood CJ at CL, Sperling J, Kirby J
Background
The respondent pleaded guilty in the District Court to armed robbery, committed at a suburban jewellery store in April 2003. He and three others, masked and armed with a tomahawk, machete, and baton, entered the store during business hours, smashed display cabinets, and fled with jewellery valued at over $74,000. The respondent was apprehended at the scene by nearby shopkeepers.
At the time of the robbery, the respondent was subject to three bonds imposed less than a month earlier for separate offences including aggravated break and enter with violence. Those bonds were revoked, and the sentencing judge was required to deal with all four counts together.
Gibson DCJ imposed an effective sentence of three years with a non-parole period of 18 months. The Crown appealed on the ground that this sentence was manifestly inadequate.
Legal Issues
- Whether the original sentence was manifestly inadequate, having regard to the armed robbery guideline judgment in R v Henry and the serious objective features of the offence
- Whether the sentencing judge erred by departing from the guideline without providing reasons for that departure
- Whether sentencing remarks from the earlier bond proceedings (which were not tendered before the sentencing judge) could be considered by the Court of Criminal Appeal as "evidence" under the proviso to s 12(1) of the Criminal Appeal Act 1912
- Whether the failure to place any material before the sentencing judge about the bond offences constituted an error affecting the sentencing exercise
Decision
The Court of Criminal Appeal unanimously allowed the Crown appeal, finding the sentence was manifestly inadequate. Kirby J, with whom Wood CJ at CL and Sperling J agreed, concluded that the sentencing judge failed to give any reasons for departing from the applicable guideline judgment. The offence fell squarely within the parameters contemplated by the guideline, and no such departure was justified on the facts presented.
On the procedural question, the Court considered whether the sentencing remarks of Nield DCJ (who had imposed the original bonds) could be received on appeal, given they had not been placed before Gibson DCJ. The Court held that such remarks were admissible on appeal even though they had not been tendered below. This was necessary to enable meaningful appellate review, which would otherwise have been hampered by the Crown's failure to place that material before the sentencing judge. The Court noted that this failure was unsatisfactory and that proper sentencing practice required the factual basis for all counts to be on the record.
The Court found special circumstances warranted a longer supervision period on account of the respondent's youth and drug associations. It also identified that the sentencing judge had applied the wrong legislative regime following amendments to the Crimes (Sentencing Procedure) Act 1999, although neither party had raised this issue on appeal. Some accumulation of the bond-related sentences onto the armed robbery sentence was appropriate, given the offences were distinct in nature and committed at different times.
The Court resentenced the respondent to a total term of 4.5 years for the armed robbery count, with a non-parole period of 2 years commencing 2 April 2004 (reflecting a partial back-date), with fixed concurrent terms for the bond offences.
Orders Made
- The appeal was allowed
- The sentence of Gibson DCJ of 16 October 2003 was quashed
- In substitution, the respondent was sentenced as follows:
- Count 1 (aggravated break and enter): Fixed term of 18 months, commencing 2 April 2003, expiring 1 October 2004
- Count 2 (steal from the person): Concurrent fixed term of 6 months, commencing 2 April 2003, expiring 1 October 2003
- Count 3 (common assault): Concurrent fixed term of 3 months, commencing 2 April 2003, expiring 1 July 2003
- Count 4 (armed robbery): Non-parole period of 2 years and total term of 4.5 years, both commencing 2 April 2004, with the non-parole period expiring 1 April 2006
Key Takeaways
- A sentencing judge who departs from an applicable guideline judgment must give reasons for that departure. The absence of any reasons was a material error justifying intervention on Crown appeal.
- Sentencing remarks from earlier proceedings are admissible on appeal for the purpose of the proviso to s 12(1) of the Criminal Appeal Act 1912, even where they were not tendered before the sentencing judge.
- The failure by the Crown to place any material before a sentencing judge about offences being sentenced concurrently (including bond offences) is procedurally unsatisfactory and may complicate appellate review.
- Where offences are distinct in nature and committed at different times, some accumulation of sentences may be required to properly reflect the totality principle, as confirmed by reference to R v Hammoud and R v AEM.
- Under legislative amendments to the Crimes (Sentencing Procedure) Act 1999 operative from February 2003, the correct sentencing approach for affected offences changed. Applying the prior regime to a post-commencement offence constituted an error, even where neither party raised it on appeal.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 21A, 44, 45, 54A, 99
- Crimes Act 1900 (NSW), ss 61, 94, 97, 112
- Criminal Appeal Act 1912 (NSW), s 12(1)
Cases:
- R v Henry (1999) 46 NSWLR 346
- Pearce v The Queen (1998) 194 CLR 610
- R v Ceissman (2001) 119 A Crim R 535
- R v Thomson & Houlton (1999-2000) 49 NSWLR 383
- R v Richards [1981] 2 NSWLR 464
- R v Wheeler [2000] NSWCCA 34
- Dinsdale v The Queen (2000) 202 CLR 321
- R v Hammoud (2000) 118 A Crim R 66
- R v AEM [2002] NSWCCA 58
- R v KBM [2004] NSWCCA 123