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Court of Criminal Appeal 3 September 2004

R v Walter & Thompson

[2004] NSWCCA 304

Assault & violenceTheft & property
CRIMINAL PRACTICE & PROCEDURE CROWN APPEALS WHETHER MANIFESTLY INADEQUATE DISCRETION NOT TO INTERVENE DELAY IN SENTENCING AND ON APPEAL.

Citation: R v Walter & Thompson [2004] NSWCCA 304
Court: Court of Criminal Appeal, New South Wales
Date: 3 September 2004
Judge(s): Grove J, Sully J, Kirby J

Background

Two respondents, Walter and Thompson, pleaded guilty in the District Court to robbery in circumstances of aggravation under the Crimes Act 1900. The aggravating circumstance was that they had inflicted actual bodily harm on their victim, a 41-year-old man they attacked in a laneway near a Cronulla nightclub in the early hours of 8 November 2002. The attack arose from a drunken attempt to obtain different trousers after Thompson had been refused entry to a club for wearing tracksuit pants.

The assault was prolonged and violent. Walter punched the victim repeatedly while Thompson kicked him as he lay defenceless on the ground. The victim lost consciousness, sustained a facial fracture, and was left stripped of his jeans, shoes, phone, money, and keys by the roadside. Police located both men minutes later, still carrying the victim's property.

The District Court sentenced Walter to five years imprisonment with a non-parole period of only six months, and Thompson to three years by way of periodic detention with a four-month non-parole period. The Crown appealed both sentences as manifestly inadequate.

  • Whether the sentences imposed by the District Court were manifestly inadequate for robbery in circumstances of aggravation involving serious violence
  • Whether the Court of Criminal Appeal should exercise its discretion to intervene, given significant delay both in the original sentencing and in the prosecution of the Crown appeals
  • How the double jeopardy principle (which provides some mitigation where an offender faces resentencing on Crown appeal) should operate in the circumstances of each respondent
  • What weight to give to the personal circumstances of each offender, including intoxication, background, and prospects of rehabilitation

Decision

The Court of Criminal Appeal found both sentences manifestly inadequate and allowed each appeal. In the case of Walter, the original non-parole period of six months on a five-year head sentence was plainly disproportionate to the objective gravity of the offending. The attack was sustained, callous, and premeditated enough to involve an express direction to Thompson to keep kicking the unconscious victim.

For Thompson, the imposition of periodic detention for offending of this nature was found to be an inadequate response, even accounting for his more limited role and personal circumstances. The Court noted Thompson had served some periods of periodic detention and had been at liberty during other periods, a matter taken into account in fixing his revised non-parole period.

On both appeals, the Court acknowledged the principle of double jeopardy, which requires some moderation of sentence when an offender faces resentencing following a Crown appeal. The Court also gave weight to the substantial delay between the offending (November 2002), sentencing (March 2004), and the appeal hearing (August 2004). These factors moderated the sentences ultimately imposed, but did not displace the need for resentencing given the inadequacy of the original orders.

The Court applied established principles regarding the relevance of Aboriginality and background disadvantage in sentencing, as well as the limited mitigatory effect of voluntary intoxication.

Orders Made

Walter:
- Crown appeal allowed
- District Court sentence quashed
- Resentenced to imprisonment for 4 years commencing 4 March 2004
- Non-parole period of 12 months, commencing 4 March 2004 and expiring 3 March 2005
- First date of eligibility for parole specified as 3 March 2005

Thompson:
- Crown appeal allowed
- District Court sentence quashed
- Resentenced to imprisonment for 3 years commencing 13 March 2004
- Non-parole period of 9 months, commencing 13 March 2004 and expiring 12 December 2004
- Released to parole on 12 December 2004
- Required to surrender to custody forthwith

Key Takeaways

  • A non-parole period of six months on a five-year head sentence for a violent, sustained aggravated robbery was held by the Court of Criminal Appeal to be manifestly inadequate, warranting intervention on Crown appeal.
  • The double jeopardy principle operates to moderate a sentence imposed on resentencing following a successful Crown appeal, but does not override the obligation to impose a sentence proportionate to the gravity of the offending.
  • Significant delay, both in the original sentencing proceedings and in the prosecution of Crown appeals, is a relevant factor capable of moderating the resentenced term, even where the original sentence was plainly inadequate.
  • Voluntary intoxication carried limited mitigatory weight where the violence was prolonged, sustained, and included active encouragement of a co-offender to continue kicking an unconscious victim.
  • Periodic detention was found to be an inappropriate sentencing disposition for offending of this nature and gravity, even for an offender with a lesser role in the attack.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 95(1) and s 95(2)(c)

Cases:
- Fernando (1992) 76 A Crim R 58
- R v Henry (1999) 46 NSWLR 346
- R v Newman & Simpson [2004] NSWCCA 102
- Bugmy v The Queen (1990) 169 CLR 525
- Power v The Queen (1974) 131 CLR 623
- R v Morrissey (CCA, unreported, 15 July 1994)
- R v Hernando (2002) 136 A Crim R 451
- Dinsdale v The Queen (2000) 202 CLR 321