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Court of Criminal Appeal 22 March 2004

R v SYDNEY

[2004] NSWCCA 63

Theft & property
CRIMINAL LAW SENTENCE OBJECTIVE SERIOUSNESS OF OFFENCE WHETHER "DOUBLE DISCOUNT" ALLOWED. FORM 1 MATTERS

Citation: R v Sydney [2004] NSWCCA 63
Court: NSW Court of Criminal Appeal
Date: 22 March 2004
Judge(s): Beazley JA; O'Keefe J; Bell J

Background

The Crown appealed a sentence imposed in the District Court on a respondent who had pleaded guilty to aggravated armed robbery under s 97(2) of the Crimes Act 1900 (NSW), an offence carrying a maximum penalty of 25 years imprisonment. The offence involved a sophisticated, pre-planned warehouse robbery in which the victim, a security guard, was threatened with a shotgun, kicked, and bound with duct tape while a crew of co-offenders stole a large quantity of mobile phones and accessories.

The sentencing judge imposed a total term of six years imprisonment with a non-parole period of three years, finding special circumstances to justify the reduced ratio. The respondent also had five additional matters taken into account on a Form 1.

The Crown argued the sentence was manifestly inadequate, submitting that it failed to reflect the objective seriousness of the offence, did not adequately account for the Form 1 matters, and involved an impermissible discount of 15% for the guilty plea.

  • Whether the sentence of six years was manifestly inadequate given the objective seriousness of the aggravated armed robbery
  • Whether the sentencing judge properly applied the guideline judgments on discounts for guilty pleas, and whether an effective "double discount" was erroneously allowed
  • Whether the sentencing judge adequately took into account the five matters listed on the Form 1
  • What role the double jeopardy principle plays when the Court of Criminal Appeal considers a Crown appeal against sentence

Decision

The Court of Criminal Appeal dismissed the appeal, with Beazley JA delivering the principal judgment and O'Keefe and Bell JJ agreeing. The Court accepted that the sentence was lenient, but leniency alone does not establish manifest inadequacy.

On the guilty plea discount, the Court found that the sentencing judge had not misapplied the guideline judgments in R v Thomson or R v Henry. A discount of 15% for the utilitarian value of the plea was open on the facts, and his Honour had additionally credited the respondent with initiating the plea process and with contrition. The Court rejected the Crown's contention that this amounted to an effective double discount over and above the discount already inherent in the Henry guideline.

Regarding the Form 1 matters, the Court confirmed that a sentencing judge is not required to specify the precise extent to which Form 1 matters are taken into account. In this case, the question of whether adequate regard had been had to those matters folded into the broader assessment of the overall adequacy of the sentence.

On the central question of manifest inadequacy, the Court applied the double jeopardy principle, which requires the Court on a Crown appeal to ask what was the least sentence the sentencing judge could have imposed. Weighing the aggravating features against significant mitigating factors, including the respondent's youth, his absence of prior custodial sentences, his attempts at rehabilitation without family support following his mother's death, and valuable assistance provided to police, the Court concluded that a pre-discount sentence of approximately seven years reduced by 15% to six years was not manifestly inadequate.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A sentence may be described as lenient and still survive a Crown appeal: manifest inadequacy requires more than leniency, and the Court of Criminal Appeal will not intervene unless the sentence falls outside the range reasonably open to the sentencing judge.
  • In Crown appeals against sentence, the double jeopardy principle requires the appellate court to consider the least sentence that could have been imposed, not merely whether it would have imposed a heavier one.
  • Under the guideline judgments in R v Thomson and R v Henry, a 15% discount for the utilitarian value of a guilty plea is capable of standing on its own without constituting an impermissible double discount, provided the sentencing judge has not also separately inflated the starting point.
  • Offences listed on a Form 1 constitute an admission of guilt but do not result in a conviction, and a sentencing court is not required to specify the exact weight attributed to each Form 1 matter: adequacy of treatment is assessed by reference to the overall sentence.
  • Significant personal mitigating factors, including youth, absence of prior custodial experience, genuine rehabilitation efforts, and substantial assistance to authorities, can collectively justify a sentence at the lower end of the available range even for a serious and well-planned offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 44(2)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- R v Thomson (2000) 49 NSWLR 383
- R v Henry (1999) 46 NSWLR 346
- R v Simpson (2001) 53 NSWLR 704
- R v Bavadra (2002) 115 A Crim R 152
- Re Rose (unreported, CCA, 23 May 1996)
- R v Harris (2001) 125 A Crim R 27
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 (2002) 56 NSWLR 146