Citation: Regina v Whitton [2004] NSWCCA 313
Court: NSW Court of Criminal Appeal
Date: 13 September 2004
Judge(s): Grove J, Simpson J, Shaw J
Background
The appellant pleaded guilty in the District Court to two offences: stealing from the person and attempted robbery. Both victims were young women who were targeted on Sydney streets in December 2002 and February 2003 respectively. At the time of each offence, the appellant was on parole for a prior aggravated robbery with wounding conviction, and by the time of the second offence he was also on bail for the first.
The sentencing judge imposed 18 months imprisonment for the steal-from-person count and four years and six months with a non-parole period of two years and six months for the attempted robbery count. The sentences were partially accumulated, producing an effective minimum custodial period of three and a half years. The appellant then sought leave to appeal against the severity of those sentences.
No challenge was made to any of the sentencing judge's factual findings. The appellant's difficult personal history, including a childhood marked by parental alcoholism and domestic violence, early drug use, and entrenched heroin addiction, was not in dispute as relevant subjective mitigation.
Legal Issues
- Whether the individual sentences and the aggregate were manifestly excessive
- Whether judicial commission sentencing statistics for similar offences indicated the sentences fell outside an acceptable range
- Whether partial cumulation of the two sentences produced an excessive overall result
- Whether the sentencing judge gave full and proper effect to the 25% guilty plea discount she stated she intended to apply
Decision
Grove J, in the minority, would have dismissed the appeal. His Honour found the sentencing judge's assessment fell within the sound exercise of her discretion and that partial cumulation did not take the sentences outside that range. He rejected the argument that stealing a small amount from a person in a public street was a matter of minimal seriousness, noting that the primary purpose of criminal justice includes protecting citizens from interference when going about their daily affairs.
Grove J also addressed the use of sentencing statistics, cautioning that statistics offer guidance rather than a template. He noted that the attempted robbery figures were drawn from a sample of only eleven offenders and that, while the sentences may have been "very high," they were not outside the statistical range. He declined to intervene simply because the Court of Criminal Appeal might itself have imposed a more lenient sentence, reaffirming that the Court operates as a court of error, not a court of review.
Simpson J, with Shaw J agreeing, reached the opposite conclusion and constituted the majority. Simpson J accepted that the second offence was serious, involving real violence, but concluded that the starting points implied by the stated 25% discount were too high for an attempted robbery in its non-aggravated form. Working backwards from the sentences imposed, the starting point for the second count must have been six years and for the first, two years. Her Honour found these starting points took the sentences outside the available range, or alternatively that the sentencing judge had not fully applied the discount she said she would give.
Orders Made
- Leave to appeal against sentence granted
- Appeal allowed by majority (Simpson and Shaw JJ)
- Sentences imposed in the District Court quashed
- Count 1 (steal from person): fixed term of 12 months imprisonment, commencing 2 February 2003 and expiring 1 February 2004
- Count 2 (attempted robbery): non-parole period of one year and nine months with a head sentence of four years, commencing 2 February 2004; non-parole period expiring 1 November 2005; head sentence expiring 1 February 2006
Key Takeaways
- Sentencing statistics published by the Judicial Commission provide guidance, not a fixed template. Grove J noted that requiring every sentence to fall within an existing statistical range would mathematically compress that range over time, distorting the very guidance the statistics are intended to provide.
- A Court of Criminal Appeal operates as a court of error rather than a court of review. The mere fact that the appellate court might have imposed a more lenient sentence does not, of itself, warrant intervention.
- Where a sentencing judge expressly states an intention to apply a maximum guilty plea discount of 25%, that stated discount can be used arithmetically to examine whether the resulting starting points were within range. Simpson J used this approach to identify that the implied starting points were too high for the offences as charged.
- Stealing a small amount of money from a member of the public on a city street is not a matter of minimal seriousness simply because the sum involved was small. The Court cited with approval the observation that criminal justice protects citizens' freedom to move about without fear of interference with their property.
- An attempted robbery, in its non-aggravated form and without use of a weapon, carries a lower sentencing starting point than a completed or aggravated robbery, and that distinction must be properly reflected in the sentence imposed.
Legislation and Cases Referenced
Cases:
- R v Ransee, NSWCCA, unreported, 8 August 1994 (per Gleeson CJ, on the purpose of criminal justice in protecting citizens' freedom on public streets)
Legislation:
No specific legislation was identified by name in the text provided. The judgment refers to "the applicable statute" governing the sentencing discretion and notes the maximum penalty for both offences is 14 years imprisonment.