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Court of Criminal Appeal 29 November 2004

Regina v Lee Joshua Martin

[2004] NSWCCA 416

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING CRIMES (SENTENCING PROCEDURE) ACT S 44 DISCOUNT FOR UTILITARIAN VALUE OF PLEA REDUCTION OF NON PAROLE PERIOD

Citation: Regina v Lee Joshua Martin [2004] NSWCCA 416
Court: NSW Court of Criminal Appeal
Date: 29 November 2004
Judge(s): Wood CJ at CL, Hislop J, Smart AJ

Background

The applicant was sentenced in the District Court following a guilty plea to armed robbery in company under s 97(1) of the Crimes Act 1900. The offence involved producing a replica handgun and robbing a pedestrian of a mobile phone and wallet on Parramatta Road, with two further offenders also participating. The incident also involved the applicant striking the complainant on the nose with the replica firearm.

Nield DCJ sentenced the applicant to 5 years and 4 months imprisonment commencing 14 June 2003, with a non-parole period of 4 years. Two further matters (assault with intent to rob, and goods in custody) were taken into account on a Form 1. At the time of the robbery, the applicant was already on bail for the Form 1 assault offence, which had involved punching a train passenger in the face during an attempted robbery.

The applicant sought leave to appeal the sentence, arguing that the non-parole period was excessive and that insufficient weight had been given to his prospects of rehabilitation and special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

  • Whether the overall sentence of 5 years and 4 months was manifestly excessive
  • Whether the sentencing judge gave sufficient consideration to the applicant's prospects of rehabilitation when setting the non-parole period
  • Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 justifying a departure from the standard statutory ratio between the non-parole period and the total sentence

Decision

The Court of Criminal Appeal confirmed the overall sentence of 5 years and 4 months as appropriate. The seriousness of the offence, the applicant's prior record (including 14 prior offences), and the fact that the robbery was committed while on bail for a similar offence were sufficient to justify a sentence at the upper end of the relevant guideline range established in R v Henry.

However, the Court found that the sentencing judge had given insufficient consideration to the applicant's rehabilitation prospects when fixing the non-parole period. Hislop J noted the applicant's disadvantaged and severely disrupted childhood, his mother's death from a drug overdose, his history of offending linked to substance abuse, and evidence of meaningful progress in custody, including studying advanced mathematics and receiving positive reports requiring minimal supervision.

These factors, taken together, were found to constitute special circumstances within the meaning of s 44(2), warranting a departure from the statutory ratio. The Court reduced the non-parole period from 4 years to 3 years and 3 months, lengthening the balance of sentence available on parole to support structured rehabilitation in the community.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence of imprisonment for 5 years and 4 months commencing 14 June 2003 confirmed
  • Non-parole period of 4 years quashed; non-parole period of 3 years and 3 months commencing 14 June 2003 and expiring 13 September 2006 substituted

Key Takeaways

  • Prospects of rehabilitation can constitute "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, justifying a reduction in the non-parole period even where the overall sentence is not disturbed.
  • A sentencing court's failure to give sufficient independent weight to rehabilitation when setting the non-parole period, as distinct from considering it in relation to the total sentence, may constitute appellable error.
  • Under the R v Henry guideline framework, a sentence exceeding the upper guideline range may still be appropriate where aggravating features include commission of the offence while on bail and a significant prior record.
  • Evidence of positive conduct in custody, such as academic study and favourable supervision reports, is material the Court of Criminal Appeal may take into account when substituting a new non-parole period on appeal.
  • Reducing the non-parole period while confirming the head sentence serves the purpose of extending the period of supervised parole, allowing structured community-based rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases
- R v Way [2004] NSWCCA 131
- R v Thomson (2000) 49 NSWLR 383
- R v Dib [2003] NSWCCA 117
- R v Henry (1999) 46 NSWLR 346