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

R v Lomas

[2004] NSWCCA 46

Theft & property
CRIMINAL LAW SENTENCE APPEAL ROBBERY OFFENCE

Citation: R v Lomas [2004] NSWCCA 46
Court: NSW Court of Criminal Appeal
Date: 5 February 2004
Judges: James J, Buddin J

Background

The appellant pleaded guilty in the District Court to one count of robbery in company, relating to a daylight bank robbery at the Commonwealth Bank in Martin Place, Sydney, on 16 April 2002. He had been one of five offenders involved, and was identified as the person who climbed over the tellers' counter. A second offence of robbery in company, committed at a National Australia Bank branch in St Leonards in September 1998, was taken into account at sentencing.

Judge Blackmore of the District Court sentenced the appellant to seven years' imprisonment with a non-parole period of five years, backdated to commence from the date of arrest on 23 April 2002. A fifteen per cent discount was applied for the guilty plea, which had not been entered at the earliest opportunity.

The appellant was only twenty-three years old at sentencing but had a significant criminal history, including a prior conviction for robbery in company for which he had received a sentence of five and a half years. Critically, he had been released on parole just two to three weeks before committing the April 2002 offence.

  • Whether the sentence of seven years with a five-year non-parole period was manifestly excessive for an offence of robbery in company
  • Whether the sentencing judge erred in the treatment of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act, which allows for a non-parole period that departs from the standard one-third balance of term
  • Whether adequate weight was given to the appellant's subjective circumstances, including his age, background, and rehabilitation prospects

Decision

James J (with Buddin J agreeing) granted leave to appeal but dismissed the appeal. The Court found no error in the sentencing judge's approach to either the head sentence or the non-parole period.

The sentencing judge had treated the offending as towards the top of the range for robbery in company offences. This was justified by the multiple aggravating features: the offence occurred in a public bank, involved five offenders acting in a coordinated way, netted over $20,000, and included a prior 1998 bank robbery being taken into account. The fact that the offence was committed while the appellant was on parole, and within weeks of being released, was characterised by Judge Blackmore as "extreme aggravation."

On the question of special circumstances, James J acknowledged that the overall period of continuous custody, combining the earlier and current sentences, would be approximately eight years and four months before parole eligibility. Nevertheless, the Court found that Judge Blackmore had carefully considered the issue. A special circumstances finding had also been made in the 1999 sentencing, and the appellant had reoffended almost immediately after release under that earlier parole. The two-year parole period allowed under the current sentence was considered sufficient to permit completion of a recommended residential rehabilitation programme.

James J also noted the caution expressed in R v Proud against applying the "totality" approach in a way that produces sentences or non-parole periods that inadequately reflect the offender's criminality. The Court was satisfied that the sentence imposed did not fall into that error.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Committing a serious offence within weeks of parole release can properly be characterised as an extreme aggravating factor, justifying a sentence at the higher end of the applicable range.
  • A prior finding of special circumstances at sentencing does not automatically entitle an offender to the same treatment on a later offence, particularly where the earlier parole was quickly followed by further serious offending.
  • Under R v Henry (1999) 46 NSWLR 346, the guideline judgment on armed robbery, the Court of Criminal Appeal confirmed that the principles from that case afford some guidance when sentencing for the related offence of robbery in company.
  • No error was established in setting a non-parole period that, when combined with prior custody, resulted in a lengthy continuous period in prison, where the sentencing judge had demonstrably turned his mind to that consequence.
  • In dismissing the appeal, the Court affirmed the warning in R v Proud that the totality principle must not be applied in a manner that produces sentences failing to adequately reflect an offender's overall criminality.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company, maximum penalty 20 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (special circumstances)

Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on sentencing for armed robbery)
- R v Brown [2000] NSWCCA 423 (totality approach to cumulative sentences)
- R v Proud [2002] NSWCCA 219 (caution against totality approach producing inadequate sentences)