Citation: R v Reynolds [2004] NSWCCA 51
Court: NSW Court of Criminal Appeal
Date: 12 March 2004
Judges: Levine J, Simpson J, Barr J (Simpson J delivering the leading judgment)
Background
The respondent pleaded guilty in the District Court to robbery whilst armed with an offensive weapon, arising from a mid-morning attack at a post office in Windale where he produced a knife, struck the worker on the shoulder, and fled with $536. A related larceny offence, involving the theft of gold jewellery worth nearly $10,000 from a jewellery store two days later, was taken into account on a Form 1 (that is, dealt with at sentence without a separate conviction). The respondent was sentenced to four years' imprisonment with a non-parole period of two years.
The respondent had a directly relevant prior history. He had previously been convicted and sentenced for two robberies of shopkeepers in the Newcastle region and, critically, was still on parole for those offences when he committed the present offences. His background included serious childhood dysfunction, long-term drug dependence, and a pattern of custody that had consumed most of his adult life.
The Crown appealed, arguing the sentence was manifestly inadequate. The respondent had separately sought leave to appeal against the sentence's severity but abandoned that application.
Legal Issues
- Whether the sentence of four years with a two-year non-parole period was manifestly inadequate for armed robbery by an offender on parole for similar offences
- Whether the sentencing judge erred in the weight given to subjective circumstances, including the late plea of guilty, the respondent's dysfunctional background, drug dependency, time in protective custody, and the "need not greed" motivation for the offending
- Whether planning, evidenced by a list of business addresses found at the respondent's home, was properly treated as an aggravating factor
- Whether the Court of Criminal Appeal should exercise its residual discretion to dismiss the Crown appeal, having regard to the Crown's delay in bringing it
Decision
Simpson J (with whom Levine and Barr JJ agreed) examined each of the sentencing judge's findings and the Crown's grounds of challenge. Her Honour was ultimately not persuaded that any specific error of fact, law, or procedure was demonstrated in the sentencing judge's approach to the subjective circumstances, the plea of guilty, the protective custody conditions, or the characterisation of the motivation as need-based rather than greed-based.
On the question of planning, the list of business addresses found at the respondent's former home raised a factual issue about whether it demonstrated advance planning of the robbery. Simpson J concluded that, on the available evidence, the sentencing judge was not obliged to find that the list was connected to planning of the Windale Post Office robbery, and no appealable error arose from declining to treat it as an aggravating feature.
Despite finding that the sentence was arguably below the minimum of the appropriate range (particularly given the respondent's parole status at the time of offending), Simpson J concluded the shortfall was not large. Re-sentencing, if the appeal succeeded, would have resulted in a head sentence of approximately four and a half years, meaning an increase of roughly six months on the head sentence and three months on the non-parole period.
The Crown had notified the respondent of a possible appeal on 20 June 2003 but did not serve the notice of appeal until 10 September 2003, approximately twelve to thirteen weeks after sentence. Simpson J acknowledged that this delay, while not causing the respondent to be lulled into a false sense of security given the remaining non-parole period, nonetheless produced a relevant unfairness. Factoring the Crown's delay into the exercise of the Court's residual discretion, and given the modest extent of any inadequacy, the Court dismissed the appeal.
Orders Made
- Crown appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that it retains a residual discretion to dismiss a Crown appeal even where a sentence may fall below the appropriate range, particularly where the Crown has been dilatory in prosecuting the appeal.
- A delay of twelve to thirteen weeks between sentence and service of a Crown's notice of appeal was treated as a relevant factor weighing against intervention, even absent proof that the respondent was actively misled about his position.
- Where the gap between the sentence imposed and the minimum appropriate sentence is modest, that narrowness itself reinforces the case for exercising the discretion against allowing the appeal and re-sentencing.
- A finding that offending was motivated by drug-driven need rather than greed can, in appropriate circumstances, operate to moderate the assessment of moral culpability, and an appellate court will not disturb such a finding where it is open on the evidence.
- Circumstantial evidence of planning (here, a list of business addresses) does not automatically become an aggravating factor: the sentencing court is entitled to decline to draw the inference of planning where the evidence does not compel it.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1901 (NSW), ss 94, 97
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 3, ss 21A, 44
- Criminal Appeal Act 1912 (NSW), s 5D
Cases:
- Dinsdale v R [2000] HCA 54; 202 CLR 321
- House v R (1936) 55 CLR 499
- R v Cranssen (1936) 55 CLR 509
- R v Durocher-Yvon [2003] NSWCCA 299
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Reynolds [1999] NSWCCA 238 (unreported, 16 August 1999)
- R v Scott [2003] NSWCCA 28
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Totten [2003] NSWCCA 207
- R v Whittaker (1928) 41 CLR 230