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14
Court of Criminal Appeal 20 December 2004

R v Ceissman

[2004] NSWCCA 466

Theft & propertyPublic order & justice offences
CRIMINAL LAW BANK ROBBERY OBJECTIVE SERIOUSNESS OF OFFENCE PATENT OR LATENT ERROR RESPONDENT ON PAROLE SIGNIFICANT CRIMINAL HISTORY

Citation: R v Ceissman [2004] NSWCCA 466
Court: NSW Court of Criminal Appeal
Date: 20 December 2004
Judges: Wood CJ at CL, Simpson J, Barr J

Background

The respondent pleaded guilty in the Sydney District Court to one count of aggravated break, enter and steal in company under s 112(2) of the Crimes Act 1900 (NSW). The offence involved a planned bank robbery at Narrabeen in May 2003, in which the respondent and a co-offender smashed their way into a bank with a sledgehammer and crowbar and stole approximately $171,980 in cash. A third person drove the pair to and from the scene in a stolen vehicle.

The respondent had only recently been released from prison when he was recruited into the scheme. He played no part in the planning and was directed throughout by his co-offender, but he was fully aware of what the offence involved before participating. The sentencing judge also accepted that the respondent had been pressured to participate partly to repay a drug debt incurred while in prison.

The District Court sentenced the respondent to six years imprisonment with a non-parole period of three years, taking into account two further offences on a Form 1. The Crown appealed, contending the sentence was manifestly inadequate.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offence
  • Whether the sentencing judge erred in determining an appropriate starting point for the sentence
  • Whether the sentencing judge gave adequate weight to the aggravating circumstances: the offence was committed while the respondent was on parole, he had a significant criminal history, and he had previously committed a similar offence
  • Whether the Court of Criminal Appeal should exercise its discretion to intervene despite the principles of restraint applicable to Crown appeals

Decision

The Court of Criminal Appeal confirmed the established principles governing Crown appeals against sentence. The Court may only intervene where patent or latent error is established, and a sentence will only disclose latent error where it is clearly outside the appropriate range. Appellate courts should resist "tinkering" with sentences, and any sentence imposed following a successful Crown appeal should generally be towards the lower end of the available range, to account for the double jeopardy a respondent faces.

On the substantive grounds, the Court found that the original sentence was manifestly inadequate. The offence was serious: it was a planned bank robbery involving significant force, committed by the respondent while he was on parole and in the context of a significant prior criminal history that included a similar offence. The Court held these aggravating factors had not been adequately reflected in the sentence imposed by the District Court.

The Court also noted the relevance of the respondent's conditions of detention. Evidence showed the respondent was held as a Special Management Area Placement Prisoner at Junee Correctional Centre and had access to programmes and extended time outside his cell. The Court confirmed, consistent with its earlier decisions, that it is inappropriate to assume as a general matter that prisoners held on protection experience special hardship warranting a sentencing discount.

On parity, the Court observed that the co-offender Cornett had received a fixed term exceeding the respondent's non-parole period by one year. The Court was satisfied that increasing the respondent's sentence to the least that could properly have been imposed would not produce a result offensive to the parity principle, given the significant differences between the two offenders.

Orders Made

  • Appeal allowed
  • Sentence below quashed
  • Respondent sentenced to a non-parole period of 4 years and 6 months, commencing 8 May 2003 and expiring 7 November 2007, with a balance of term of 2 years
  • Earliest eligible date for release on parole: 7 November 2007
  • Special circumstances found in relation to the balance of term, on the basis that a longer supervisory period post-release was desirable to address the respondent's drug addiction and support rehabilitation

Key Takeaways

  • A Crown appeal against sentence will only succeed where patent or latent error is established; latent error arises only where the sentence is clearly outside the appropriate range, not merely where an appellate court might have imposed something different.
  • Significant aggravating factors under the Crimes (Sentencing Procedure) Act 1999, including commission of an offence while on parole, a substantial prior criminal history, and prior similar offending, must be adequately reflected in the sentence imposed.
  • Under the parity principle, a comparison between co-offenders' sentences remains relevant on a Crown appeal, but the Court of Criminal Appeal found no parity problem where meaningful differences between offenders justified the disparity.
  • The Court of Criminal Appeal reaffirmed that courts should not make a general assumption that prisoners held on protection experience special hardship justifying a sentencing reduction, particularly where evidence demonstrates reasonable conditions of detention.
  • Any sentence substituted following a successful Crown appeal will generally be set towards the lower end of the appropriate range, in recognition of the double jeopardy the respondent faces as a result of the appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 21A(3), 44(2), 54A(2), 54B

Cases
- Dinsdale v The Queen (2000) 202 CLR 321
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- Siganto v The Queen (1998) 194 CLR 656
- R v Baker [2000] NSWCCA 85
- R v Bezan [2004] NSWCCA 342
- R v Ceissman [2000] NSWCCA 274
- R v Davies [2004] NSWCCA 319
- R v Fernando [2002] NSWCCA 28
- R v Govinden (1999) 106 A Crim R 314
- R v Hunt [2002] NSWCCA 482
- R v Moon (2000) 117 A Crim R 497
- R v Osenkowski (1982) 5 A Crim R 394
- R v Snider [2004] NSWCCA 134
- R v Totten [2003] NSWCCA 207
- R v Tran [1999] NSWCCA 109
- R v Wall [2002] NSWCCA 42
- R v Way [2004] NSWCCA 131