AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 5 November 2004

R v Daniel Stephen Lewis

[2004] NSWCCA 383

Assault & violenceTheft & property
SENTENCING ROBBERY IN COMPANY APPLICABILITY OF GUIDELINE JUDGMENT WHETHER MANIFESTLY EXCESSIVE

Citation: R v Daniel Stephen Lewis [2004] NSWCCA 383
Court: NSW Court of Criminal Appeal
Date: 5 November 2004
Judge(s): Giles JA, Buddin J, Smart AJ

Background

The applicant was convicted of robbery in company following an incident in central Sydney in October 2002. He and a co-offender approached a nightclub employee who was carrying weekend takings of over $61,000 to a bank. The applicant threatened the victim by claiming to have an HIV-positive blood-filled syringe, and made personal threats referencing the victim's home and partner, before taking the backpack containing the cash.

The applicant was apprehended shortly afterwards, still in possession of the backpack. All but $150 of the money was recovered. He had no prior criminal history, had been abusing illicit drugs and alcohol in the period leading up to the offence, and pleaded guilty.

At first instance, Bell DCJ in the District Court sentenced the applicant to a non-parole period of 2 years and 2 months, with a total sentence of 3 years and 2 months, commencing 29 January 2004. The applicant sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to give proper weight to the applicant's claim that he acted under duress
  • Whether the sentencing judge erred in the application of the guideline judgment in R v Henry to the offence of robbery in company
  • Whether the sentence was manifestly excessive, including by reference to sentences imposed in comparable cases and Judicial Commission statistics

Decision

The Court granted leave to appeal but dismissed the appeal in its entirety, finding no error in the sentencing judge's approach.

On the duress ground, the Court examined the applicant's evidence and concluded that the sentencing judge had not erred. The claimed duress was not established to the requisite standard, and the sentencing judge's treatment of this factor was appropriate.

On the Henry guideline, the Court confirmed that the guideline applicable to armed robbery also applies to robbery in company, as both carry the same maximum penalty of 20 years imprisonment (following R v Murchie). The sentencing judge had correctly identified that the present case largely fit the Henry profile, with the exception that no conventional weapon was used and a very large sum was taken. The starting point of 4 years, at the bottom of the guideline range, was appropriate given those circumstances.

On manifest excess, the Court rejected the submission that comparison with sentences imposed on other unrelated offenders demonstrated error. The relevant question is whether the challenged sentence falls within the appropriate range, not how it compares to individual sentences that merely form part of that range. Judicial Commission statistics confirmed the sentence was well within the available discretionary range. The Court also noted that even if some error had been established, no lesser sentence was warranted given the objective gravity of the offence and the generosity already extended through a 20% discount for the guilty plea.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Henry guideline for armed robbery applies equally to robbery in company, given both offences carry the same maximum penalty of 20 years imprisonment.
  • In dismissing the appeal, the Court reaffirmed that manifest excess is assessed by reference to whether a sentence falls within the appropriate range, not by direct comparison with sentences imposed on other unrelated offenders.
  • A starting point at the bottom of the Henry guideline range was upheld even where the amount taken was very large, reflecting the absence of a weapon and the other mitigating features present.
  • Where a guilty plea is not entered at the earliest opportunity, a 20% discount may still be characterised as generous, particularly where the Henry guideline already contemplates some allowance for a guilty plea.
  • Under s 21A(3)(d) of the Crimes (Sentencing Procedure) Act 1999, duress may operate to mitigate a sentence, but the applicant must establish the relevant circumstances to the sentencing court's satisfaction.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(d), 44

Cases:
- R v Henry (1999) 46 NSWLR 346 (armed robbery guideline judgment)
- R v Murchie (1999) 108 A Crim R 482 (guideline applicable to robbery in company)
- R v Morgan (1993) 70 A Crim R 358 (comparison of sentences from unrelated offenders)
- R v Howard [2004] NSWCCA 348
- R v Matthews [2004] NSWCCA 112