Citation: Regina v Joseph Phillipe [2004] NSWCCA 2
Court: New South Wales Court of Criminal Appeal
Date: 3 February 2004
Judge(s): James J, Buddin J
Background
The applicant was 17 years old when he committed two separate series of armed robberies in August and December 2001. The August offences involved four armed robberies committed within approximately one hour, carried out alongside a group of co-offenders using a replica handgun and a knife. The December offences involved three further armed robberies, including two taxi driver robberies with a co-offender and a pharmacy robbery in which over $37,000 in cash was stolen. The December offences were committed while the applicant was on bail in relation to the August matters.
Following pleas of guilty in the District Court, the applicant was sentenced to an effective head sentence of four years' imprisonment with a non-parole period of two years and nine months. Because the applicant was 17 at the time of the offences, he was dealt with under the Children (Criminal Proceedings) Act 1987 and ordered to serve his sentences in a detention centre.
The applicant sought an extension of time to apply for leave to appeal, contending that the sentences were manifestly excessive, that the sentencing judge failed to give adequate weight to his subjective circumstances, and that the sentences were disproportionate to those imposed on his co-offenders.
Legal Issues
- Whether the sentences imposed were manifestly excessive having regard to the applicant's favourable subjective circumstances, including his youth, guilty pleas, remorse, and lack of prior convictions
- Whether the sentencing judge gave sufficient weight to the guideline judgment in R v Henry (1999) 46 NSWLR 346 and its application to a juvenile offender
- Whether the sentences gave rise to a justifiable sense of grievance when compared to the sentences imposed on co-offenders (the parity principle)
Decision
The Court granted the extension of time and leave to appeal, but dismissed the appeal on all grounds.
On the question of manifest excess, Buddin J found that the sentencing judge had extensively considered the applicant's subjective circumstances and reduced the sentences accordingly. A 20% discount was applied for the guilty pleas, and the applicant's youth, expressions of remorse, absence of prior convictions, and generally good character were all taken into account.
On the Henry guideline, the Court noted that under R v SDM (2002) 51 NSWLR 530, that guideline applies equally to juvenile offenders. The guideline identified four to five years as the appropriate range for a single armed robbery. The applicant received an effective head sentence of only four years across seven such offences, many of considerable objective gravity. The Court found this demonstrated significant leniency rather than excess.
On parity, the Court found the comparison with co-offenders was of limited utility. No other offender faced charges arising from both the August and December series. Some co-offenders were dealt with in the Children's Court, others faced fewer charges, and the offender whose circumstances most closely resembled the applicant's had provided substantial assistance to authorities. The sentencing judge's treatment of the parity issue was found to be appropriate.
Orders Made
- Extension of time to apply for leave to appeal granted
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that the guideline judgment in R v Henry, establishing a four-to-five year range for a single armed robbery, applies to juvenile offenders as well as adults, consistent with R v SDM.
- Receiving an effective head sentence of four years across seven armed robbery charges demonstrated that substantial leniency had already been extended, rather than that the sentences were excessive.
- Offending committed while on bail for a prior series of offences is a significant aggravating factor that weighs against any argument of manifest excess.
- The parity principle carries limited weight where co-offenders faced materially different charges, were dealt with in different courts, or had provided assistance to authorities.
- Under the Children (Criminal Proceedings) Act 1987, a sentencing court may order that a young offender serve sentences in a detention centre even where it sentences the offender "according to law."
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 19
Cases:
- R v Henry (1999) 46 NSWLR 346 (NSW Court of Criminal Appeal guideline judgment on armed robbery)
- R v SDM (2002) 51 NSWLR 530 (application of Henry guideline to juvenile offenders)