Citation: [2004] NSWCCA 94
Court: NSW Court of Criminal Appeal
Date: 6 April 2004
Judges: Handley JA, Dowd J, Greg James J
Background
Two co-offenders, referred to here as the male appellant and the female appellant, were sentenced in the District Court following their guilty pleas to stealing from the person, an offence under s.94 of the Crimes Act 1900 carrying a maximum penalty of 14 years' imprisonment. The offence occurred in May 2002 in the Sydney CBD, when the pair took a victim's handbag from a food court and were apprehended shortly afterwards going through its contents on an escalator. Nearly all property in the handbag was recovered.
McGuire DCJ sentenced the female appellant to three years and six months' imprisonment, fully cumulative on an existing 12-month fixed term, with a non-parole period of one year. The male appellant received the same head sentence with a non-parole period of two years. Both had prior records described by the sentencing judge as appalling.
Each appellant sought leave to appeal on the single ground that their sentence was manifestly excessive.
Legal Issues
- Whether the sentences imposed on each appellant for steal from the person were manifestly excessive
- Whether the sentencing judge gave adequate weight to the subjective circumstances of each appellant, including deprived backgrounds, mental health issues, and drug dependency
- Whether the principles in Regina v Fernando (concerning Indigenous and disadvantaged offenders) were properly applied
- Whether the sentences should have been moderated by reference to the Local Court's jurisdictional limits, given that court could theoretically have dealt with the matter
Decision
The Court of Criminal Appeal granted leave to appeal in each case but dismissed both appeals. Greg James J, with Handley JA and Dowd J agreeing, found that the sentencing judge had not fallen into error and that the sentences fell within the proper exercise of his discretion.
The Court noted that McGuire DCJ had thoroughly engaged with the subjective circumstances of both appellants. In the female appellant's case, this included a history of psychiatric hospitalisation, intellectual limitations, chronic drug and alcohol abuse, physical and sexual trauma, and a deeply disadvantaged background. The sentencing judge applied the Fernando principles and went further, addressing specific difficulties individual to each offender. The Court found no error in how those matters were weighed.
The argument that the matter could have been dealt with in the Local Court was rejected. Given the nature of the offences and each appellant's criminal history, the District Court's assumption of jurisdiction was plainly appropriate, and the District Court was not required to limit its sentencing range to that of the Local Court.
Regarding the female appellant's post-sentence rehabilitation material, including certificates attesting to courses completed in custody, the Court noted this evidence could not be used to reduce a sentence that already fell within the proper sentencing range. However, Greg James J specifically remarked on how encouraging the material was and observed it may assist the Parole Board when considering her release.
Orders Made
- In each case, leave to appeal granted; appeal dismissed.
Key Takeaways
- A sentence for steal from the person under s.94 of the Crimes Act 1900 is not required to be confined to Local Court ranges simply because that court could theoretically have exercised jurisdiction over the matter.
- The Court of Criminal Appeal confirmed that the Fernando principles (concerning the sentencing of offenders with severely disadvantaged backgrounds) were properly engaged by the sentencing judge, who acknowledged those considerations before concluding that custodial sentences were nonetheless warranted.
- Where a sentencing judge has accepted subjective circumstances including mental illness, drug dependency, and profound social disadvantage, an appellate court will not intervene unless error in the exercise of discretion is established.
- Post-sentence rehabilitation evidence tendered on appeal can be considered for re-sentencing purposes but cannot justify reducing a sentence that already falls within the appropriate discretionary range. Such material may, however, be relevant to Parole Board considerations.
- No error arose from the sentencing judge's incidental use of the word "rob" in sentencing remarks, given his clear acknowledgment that no violence was involved and given that the maximum penalties under s.94 for robbery and steal from the person are identical.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s.94 (steal from the person, robbery, assault with intent to rob)
Cases
- Regina v Fernando (1992) 76 A Crim R 58