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Court of Criminal Appeal 7 April 2005

R v Jeanie Anne Marie VINCENT

[2005] NSWCCA 135

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING CROWN APPEAL WHETHER SENTENCE MANIFESTLY INADEQUATE ARMED ROBBERY GUILTY PLEA

Citation: R v Jeanie Anne Marie VINCENT [2005] NSWCCA 135
Court: NSW Court of Criminal Appeal
Date: 7 April 2005
Judge(s): Spigelman CJ, Studdert J, Greg James J

Background

The respondent pleaded guilty in the District Court to armed robbery under s 97(1) of the Crimes Act 1900, carrying a maximum penalty of 20 years. The offence occurred on 15 December 2003, just two weeks after she was released on parole following earlier District Court convictions for three armed robbery offences committed in 2001 and 2002.

The offence involved the respondent and her 14-year-old son, both disguised and armed with knives and a baseball bat, forcing entry into a victim's home late at night while the victim's two young children were asleep inside. The respondent threatened the victim repeatedly, pushed her to the floor twice, inflicted a minor cut, demanded her jewellery, and directed her son to clear the property of significant valuables. The respondent also compelled the victim to help carry a television set to the street, then drove away in the victim's car.

District Court Judge Armitage imposed a sentence of four years with a non-parole period of two years. The Crown appealed under s 5D of the Criminal Appeal Act 1912, arguing the sentence was manifestly inadequate.

  • Whether the sentence of four years with a two-year non-parole period was manifestly inadequate for armed robbery in the circumstances
  • Whether the sentencing judge gave sufficient weight to personal deterrence, given the respondent's prior history of armed robberies and the fact that the offence was committed during parole
  • Whether the structure of the sentence was flawed in that it left open the possibility that the respondent would serve no additional actual punishment for the present offence

Decision

Spigelman CJ, with Studdert J and Greg James J agreeing, found that the sentence was manifestly inadequate on multiple grounds. The Chief Justice identified that the sentence failed to adequately account for personal deterrence, given the respondent's significant prior criminal history, including three armed robbery convictions, and the fact that the current offence was committed only two weeks into a parole period.

The objective gravity of the offence was also insufficiently reflected. The violence used, the intrusion into the victim's home while young children were present, the use of weapons, and the fact that the offence was committed in company all pointed to the need for a substantially heavier sentence. The respondent's difficult personal history and the subjective matters before the sentencing judge were acknowledged, but the Chief Justice held they did not justify the outcome reached.

A structural defect in the original sentence compounded the inadequacy. Because the non-parole period for the present offence would expire before the head sentence for the earlier robberies expired, there existed a real possibility that the respondent would suffer no additional actual punishment for this offence at all, particularly if parole for the earlier offences was revoked. Spigelman CJ held that such a possibility should not have been left open.

The Court allowed the appeal, quashed the sentence, and re-sentenced the respondent. A head sentence of six years was imposed, reduced from what would otherwise have been eight years to reflect the guilty plea.

Orders Made

  • Appeal allowed and sentence quashed
  • The respondent is sentenced to a non-parole period of 3 years commencing on 15 December 2003 and expiring on 14 December 2006, and a balance of term of 3 years commencing on 15 December 2006

Key Takeaways

  • A sentence structure that leaves open the real possibility of no additional actual punishment for a new offence is itself a factor rendering a sentence manifestly inadequate, particularly where the new offence was committed during a parole period for earlier offences of the same character.
  • Personal deterrence warrants considerable weight where an offender has a prior history of armed robbery and reoffends within weeks of release on parole, even where subjective circumstances of hardship are established.
  • The Court of Criminal Appeal confirmed that, but for the guilty plea, the objective gravity of this armed robbery warranted a head sentence of eight years, reflecting the violence used, the intrusion into a victim's home, the presence of young children, and the offence being committed in company and while armed.
  • Acceptance by a sentencing judge that an offender held a genuine belief about the victim's conduct does not, of itself, substantially reduce the offender's criminality, particularly where the offence involved sustained threats and significant physical intimidation.
  • Under s 5D of the Criminal Appeal Act 1912, the Crown may appeal a sentence on the ground of manifest inadequacy, and the Court will re-sentence if that ground is established.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (armed robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- R v Henry (1999) 46 NSWLR 346