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Court of Criminal Appeal 12 March 2004

R v Reynolds

[2004] NSWCCA 51

Assault & violenceTheft & propertyPublic order & justice offences
CROWN APPEAL PLEA OF GUILTY SUBJECTIVE CIRCUMSTANCES ERROR OF FACT OR LAW OR PROCEDURE PROTECTIVE CUSTODY PLANNING AS AN AGGRAVATING FACTOR

Citation: R v Reynolds [2004] NSWCCA 51
Court: Court of Criminal Appeal
Date: 12 March 2004
Judge(s): Levine J, Simpson J, Barr J (Simpson J delivered the principal judgment; Levine and Barr JJ agreed)

Background

The respondent pleaded guilty in the District Court to robbery whilst armed with an offensive weapon under s97 of the Crimes Act 1901, with a larceny offence taken into account on a Form 1. The robbery involved entering a post office, using a ruse to open a cash drawer, producing a knife, and striking the victim on the shoulder before taking $536. Two days later, the respondent stole gold bracelets worth nearly $10,000 from a jewellery store.

Williams DCJ sentenced the respondent to four years' imprisonment with a non-parole period of two years, commencing 4 December 2002. The sentencing judge found special circumstances under s44 of the Crimes (Sentencing Procedure) Act 1999 to justify the extended parole period relative to the non-parole period.

The Crown appealed under s5D of the Criminal Appeal Act 1912, contending the sentence was manifestly inadequate. The respondent had a prior record including two armed robbery convictions and was on parole for those offences at the time of the present offences. The respondent had abandoned his own application for leave to appeal against severity.

Legal Issues

  • Whether a Crown appeal under s5D requires proof that the sentence is manifestly inadequate, or whether demonstrated error alone is sufficient to justify intervention
  • Whether the sentencing judge erred in reducing the sentence based on the respondent's likely time in protective custody
  • Whether the sentencing judge erred in finding there was no planning involved in the robbery or larceny
  • Whether drug addiction was improperly treated as a general mitigating factor, rather than a circumstance specific to the respondent
  • Whether the guideline in R v Henry was incorrectly applied, given the respondent's prior criminal history and commission of offences while on parole
  • Whether the finding of special circumstances warranting an extended parole period was open
  • Whether the plea of guilty discount was excessive given the lateness of the plea
  • Whether delay in bringing the Crown appeal should affect the outcome, even if the sentence was shown to be inadequate

Decision

The test for Crown appeals: Simpson J confirmed that the ultimate question on a Crown appeal is whether the sentence is manifestly inadequate. Identifying specific error alone is not sufficient; the Crown must also establish that the sentence imposed was manifestly inadequate, whether or not that inadequacy flows from the identified error. This is consistent with the principles in House v R and Dinsdale v R.

Protective custody: The sentencing judge accepted uncontested evidence from the respondent that he would likely serve his sentence in protective custody and treated this as a factor reducing both the head sentence and supporting a finding of special circumstances. The Court of Criminal Appeal found no error in accepting the respondent's uncontested evidence on this point. The Court also found no error in the sentencing judge considering protective custody twice, once in relation to the length of sentence and once in relation to special circumstances, provided excessive benefit was not given. The Court noted that caution is required when the same factor bears on two separate issues, but was not satisfied that error was established on the facts.

Planning as an aggravating factor: The sentencing judge found no degree of planning in either offence. The Court of Criminal Appeal held this was an error. The discovery of a list of business addresses at the respondent's premises, including the Windale Post Office, was strong evidence of at least some planning. The Court found the larceny also bore signs of planning, given that the respondent had visited the jewellery store earlier in the day with a companion before returning alone. However, the Court observed that the evidence did not disclose any sophisticated scheme, only that the offences were not entirely spontaneous.

Need not greed: The sentencing judge described the respondent's motivation as need rather than greed and made observations that appeared to extend beyond the respondent's personal circumstances to drug addiction generally. The Court accepted this was probably an error in framing, but concluded it was not appellable error in this case. The respondent's own circumstances had been separately and correctly assessed, and the general observations did not affect the sentence.

Application of the Henry guideline: The sentencing judge sentenced at the lowest end of the range in R v Henry without adequately accounting for the respondent's prior convictions for similar offences and the fact that the present offences were committed while he was on parole. The Court of Criminal Appeal found this reflected an insufficiently critical engagement with how the guideline profile mapped onto the respondent's circumstances. The Court accepted this denoted error.

Special circumstances: The Crown challenged the special circumstances finding but the Court of Criminal Appeal declined to disturb it. While not every sentencing judge would have made such a finding, the Court was not satisfied the finding was unavailable on the facts.

Plea of guilty discount and delay: The Court did not separately resolve the plea discount ground. On the question of delay, the Crown took approximately twelve weeks from sentencing to serve the notice of appeal. The Court acknowledged the Crown's frankness on this point and found the delay, while not causing direct prejudice in the conventional sense, was an unfairness that engaged the Court's residual discretion to dismiss an otherwise successful Crown appeal.

Outcome on discretion: Simpson J concluded the sentence fell short of the appropriate minimum, which would have been a head sentence of four and a half years, producing an increase of three months on the non-parole period and six months on the head sentence. These were not trivial differences. However, taking into account the Crown's delay in bringing the appeal, the Court exercised its residual discretion to dismiss the appeal rather than re-sentence.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • A Crown appeal under s5D of the Criminal Appeal Act 1912 requires more than proof of specific sentencing error; the Crown must ultimately establish that the sentence imposed was manifestly inadequate, even where particular errors are demonstrated.
  • Demonstrated errors, including insufficient engagement with evidence of planning and inadequate attention to an offender's prior record and parole status when applying a guideline judgment, did not automatically produce a successful Crown appeal where the resulting shortfall in sentence was modest.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that it retains a residual discretion to refuse to re-sentence even where the sentence is found to be inadequate, and that unexplained Crown delay in lodging an appeal is a legitimate consideration in exercising that discretion.
  • Protective custody may properly be taken into account both in fixing the length of a sentence and in determining whether special circumstances exist under s44 of the Crimes (Sentencing Procedure) Act 1999, but courts must exercise caution to avoid granting excessive combined benefit from the same circumstance.
  • The absence of any disguise during an offence does not, by itself, support a finding of no planning; other evidence such as prior reconnaissance or a list of target premises must be weighed and addressed in the sentencing remarks.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated