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10
Court of Criminal Appeal 15 April 2004

Keen v R

[2004] NSWCCA 86

Theft & propertyPublic order & justice offences
APPEAL AGAINST SEVERITY OF SENTENCES PLEAS OF GUILTY ROBBERY IN COMPANY SUBJECTIVE CIRCUMSTANCES GAMBLING ADDICTION PARITY

Citation: Keen v R [2004] NSWCCA 86
Court: NSW Court of Criminal Appeal
Date: 15 April 2004
Judge(s): Sully J, Simpson J, Sperling J

Background

The applicant, a young man with no prior criminal history, pleaded guilty in the District Court at Newcastle to one count of robbery in company, two counts of robbery whilst armed with an offensive weapon, and one count of driving a conveyance without the owner's consent. The offences were committed over a three-week period in early 2002, when the applicant was nineteen years old. He acted as the getaway driver in three separate armed robberies targeting a pharmacy, a liquor outlet, and a video store, during which knives were used by his co-offenders.

The sentencing judge in the District Court imposed partially cumulative sentences producing an aggregate term of five years and eleven months, with an overall non-parole period of four years and five months. The applicant sought leave to appeal that outcome on the grounds that the sentences were manifestly excessive.

A notable feature of the applicant's subjective case was a gambling addiction that had contributed to his involvement in the offences. He had an otherwise strong background, including an apprenticeship in carpentry, close family support, and no prior offending.

  • Whether the original sentences were manifestly excessive having regard to the applicant's subjective circumstances, including his youth, prior good character, and gambling addiction
  • Whether the principle of parity applied in respect of co-offenders
  • Whether the totality principle was properly applied to the partially cumulative sentences
  • Whether special circumstances existed warranting a departure from the standard non-parole period ratio
  • Whether the fact that the applicant was being held in protective custody (a circumstance not known at the time of sentencing) was relevant to re-sentencing

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, quashing the original sentences. Simpson J (with whom Sully J and Sperling J agreed) identified several grounds warranting intervention.

A key development since the original sentencing was that the applicant had been held in protective custody for most of his incarceration, and it was anticipated he would remain so for the balance of his sentence. The sentencing judge had not anticipated this situation. The Court confirmed the well-established principle that protective custody, being more onerous than ordinary imprisonment, is a factor that points towards some reduction in sentence. This justified reducing both the head sentences and the non-parole periods.

The Court also found that special circumstances existed, both for the reasons identified by the original sentencing judge and additionally because the sentences would be served in protective custody. A finding of special circumstances permits a court to extend the parole period beyond the standard statutory proportion, on the basis that a longer supervised period in the community will better support rehabilitation.

In restructuring the sentences to comply with the principles in Pearce v The Queen, the Court acknowledged that the sentence imposed on the fourth count might appear disproportionate when viewed in isolation. This was explained as a consequence of partial accumulation and the need to achieve the overall objective of an extended parole period, an approach expressly authorised by the High Court in Johnson v The Queen. The revised overall sentence was five years' imprisonment with a non-parole period of three years.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; original sentences quashed
  • In lieu of the original sentences, the applicant was re-sentenced as follows:
  • Count 1 (robbery in company): 2 years' imprisonment from 2 March 2003, expiring 1 March 2005; non-parole period of 1 year, expiring 1 March 2004
  • Count 2 (armed robbery): 2 years and 9 months' imprisonment from 2 March 2004, expiring 1 December 2006; non-parole period of 1 year and 4 months, expiring 1 July 2005
  • Count 3 (driving without consent): fixed term of 6 months from 2 March 2004, expiring 1 September 2004
  • Count 4 (armed robbery): 3 years' imprisonment from 2 March 2005, expiring 1 March 2008; non-parole period of 1 year, expiring 1 March 2006

Key Takeaways

  • Protective custody is a recognised sentencing consideration in NSW: because its conditions are more onerous than those of ordinary imprisonment, it points towards some reduction in both the head sentence and the non-parole period.
  • Where a material change in custodial circumstances occurs after sentencing, and that change was not anticipated by the sentencing judge, it may form a basis for a successful appeal against severity.
  • A finding of special circumstances can be supported by multiple independent grounds, including the rehabilitation needs of a young offender and the fact that a sentence will be served in protective custody.
  • Apparent disproportionality in an individual sentence within a partially cumulative structure does not necessarily constitute error, provided the overall sentences are consistent with the totality principle and any such approach is authorised by appellate authority.
  • In applying the Pearce principle to partially cumulative sentences, the Court of Criminal Appeal confirmed that individual counts may be adjusted to ensure the aggregate term achieves the correct sentencing objectives, drawing support from Johnson v The Queen [2004] HCA 15.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 145A(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23(3), 44

Cases
- Johnson v The Queen [2004] HCA 15
- Lowe v The Queen (1984) 154 CLR 606
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Cartwright (1989) 17 NSWLR 243
- R v Ellis (1986) 6 NSWLR 603
- R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
- R v Henry and others [1999] NSWCCA 111; 46 NSWLR 346
- R v Postigilione (1997) 189 CLR 295
- R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383