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Court of Criminal Appeal 23 September 2004

Regina v HALA aka BLACK

[2004] NSWCCA 329

Assault & violenceTheft & property

Citation: Regina v HALA aka BLACK [2004] NSWCCA 329
Court: NSW Court of Criminal Appeal
Date: 23 September 2004
Judges: Spigelman CJ, Barr J, Hoeben J

Background

The applicant pleaded guilty in the District Court to aggravated robbery under s 95(1) of the Crimes Act 1900. The offence occurred in September 2003 in Sans Souci, when the applicant, then 19 years old and affected by alcohol, physically assaulted two youths, took one victim's mobile phone, and threatened to stab both victims. Neither victim was seriously injured.

Dodd DCJ sentenced the applicant to three years and six months' imprisonment, with a non-parole period of 12 months. The sentencing judge noted the offence fell at the lower end of seriousness for its type, reduced the sentence by 25 percent for the early guilty plea, and found the applicant to be contrite with good rehabilitation prospects.

The applicant sought leave to appeal against the sentence on two grounds: that the head sentence was manifestly excessive, and that the sentencing judge applied the wrong formulation of s 44 of the Crimes (Sentencing Procedure) Act 1999.

  • Whether a head sentence of three and a half years for aggravated robbery was manifestly excessive, taking into account the applicant's youth, contrition, rehabilitation prospects, and the guilty plea discount
  • Whether the sentencing judge erred by applying the pre-1 February 2003 formulation of s 44 of the Crimes (Sentencing Procedure) Act 1999, rather than the formulation applicable to offences committed after that date
  • Whether, once procedural error under s 44 is established, the Court of Criminal Appeal is required to intervene, or may still dismiss the appeal under s 6(3) of the Criminal Appeal Act 1912

Decision

On the first ground, Barr J rejected the submission that the head sentence was manifestly excessive. The applicant relied on sentencing ranges from R v Henry (1999) 46 NSWLR 346, which concerned offenders with no prior relevant history. The Court held that reference was inapplicable here because the applicant had a recent and troublesome criminal history, including breaches of two 12-month bonds at the time of sentencing. Aggravated robbery carries a maximum of 20 years' imprisonment, and the sentence fell within the proper exercise of the sentencing discretion.

On the second ground, the Court accepted that error had occurred. The offence was committed after 1 February 2003, so the current form of s 44 applied. That form required the sentencing judge to fix the non-parole period first and then set the balance of the term, not the reverse. The sentencing judge instead applied the old formulation, which constituted error.

However, the Court found that the error did not require it to substitute a different sentence. Under s 6(3) of the Criminal Appeal Act 1912, the Court must quash and re-sentence only if a different sentence is warranted in law. The Court held that no lesser sentence than that imposed was warranted. The appeal was accordingly dismissed, notwithstanding the established procedural error.

The Court also clarified that its earlier decision in R v KBM [2004] NSWCCA 123 did not stand for the proposition that a s 44 procedural error automatically compels intervention. That case merely confirmed that intervention is available if a different sentence is warranted in law; it does not mandate a different result.

Orders Made

  • Leave granted to appeal against sentence
  • Appeal dismissed

Key Takeaways

  • A procedural error under s 44 of the Crimes (Sentencing Procedure) Act 1999 does not automatically require the Court of Criminal Appeal to substitute a different sentence; the Court retains its discretion under s 6(3) of the Criminal Appeal Act 1912 to dismiss the appeal where no lesser sentence is warranted in law.
  • The pre- and post-1 February 2003 formulations of s 44 differ in a material respect: the old form required the total term to be set first, while the current form requires the non-parole period to be set first, with the balance of term not exceeding one-third of the non-parole period absent special circumstances.
  • Sentencing ranges from R v Henry, which apply to offenders with no prior relevant history, are not directly applicable where an offender has a recent and troublesome criminal record.
  • In assessing manifest excess, a prior criminal history involving bond breaches constitutes a significant aggravating factor that can justify a higher starting point for aggravated robbery.
  • Upholding the sentence, the Court confirmed that aggravated robbery is a serious offence carrying a maximum of 20 years' imprisonment, and that all objective and subjective features must be weighed together rather than assessed in isolation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 95(1) (aggravated robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (non-parole periods)
- Criminal Appeal Act 1912 (NSW), s 6(3) (powers of the Court of Criminal Appeal on sentence appeals)

Cases:
- R v Henry (1999) 46 NSWLR 346
- R v KBM [2004] NSWCCA 123
- R v Mako [2004] NSWCCA 90