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Court of Criminal Appeal 14 April 2005

Regina v Street

[2005] NSWCCA 139

Theft & propertyFirearms & weaponsPublic order & justice offences

Citation: Regina v Street [2005] NSWCCA 139
Court: NSW Court of Criminal Appeal
Date: 14 April 2005
Judge(s): Wood CJ at CL, Grove J, Hoeben J

Background

The applicant, a young man aged twenty at the time of the offences, was convicted of a series of serious armed robberies and related offences committed between November 2002 and January 2003. The offences involved multiple hotel and club robberies carried out with firearms, often with co-offenders, and included arson of getaway vehicles. The offences were sentenced in the Parramatta District Court on 18 June 2004.

Delaney DCJ imposed a combination of fixed-term sentences and one sentence with a non-parole period, partially accumulated. The overall effect was a head sentence of 11 years commencing 4 June 2003 and expiring 3 June 2014, with a non-parole period of 8 years expiring 3 June 2011. The applicant sought leave to appeal against sentence in the Court of Criminal Appeal.

A further complication arose from the Form 1 matters: the sentencing judge took those additional offences into account when sentencing for the January 2003 armed robbery offence, rather than the November 2002 offence to which the Form 1 had been attached by the Director of Public Prosecutions.

  • Whether the sentencing judge correctly applied s 21A of the Crimes (Sentencing Procedure) Act 1999 when identifying and weighing aggravating and mitigating factors.
  • Whether the Form 1 matters were correctly applied to the appropriate head offence.
  • Whether a finding of special circumstances, when made across multiple sentences, was correctly given effect in the overall sentence structure.
  • Whether errors in structuring the sentences resulted in an overall term that was unjust, warranting appellate intervention on totality grounds.

Decision

Hoeben J, with whom Wood CJ at CL and Grove J agreed, identified errors in the way the District Court structured the sentences. The primary concern was the effect of a finding of special circumstances on the construction of multiple sentences. Where special circumstances are found, the standard statutory ratio between non-parole period and head sentence may be adjusted, but the Court of Criminal Appeal found that this adjustment had not been correctly applied across the sentence structure as a whole.

The Court also noted the error in relation to the Form 1. Although the Form 1 had been signed by the DPP in connection with the November 2002 offence, the sentencing judge took those matters into account on the January 2003 offence instead. The Court acknowledged this departure but addressed it within the overall restructuring of the sentences rather than treating it as a standalone ground requiring separate correction.

Hoeben J concluded that these errors, taken together, meant the sentencing judge would have structured the sentences differently and arrived at a lesser overall term. The Court considered this sufficient to warrant intervention. Rather than altering individual sentences, the Court adjusted the accumulation structure to give effect to proper totality principles, reducing the head sentence to 10 years and the non-parole period to 7 years.

Orders Made

  • Leave to appeal granted and appeal allowed.
  • Sentences imposed by Delaney DCJ on 18 June 2004 quashed.
  • Applicant re-sentenced as follows:
  • Armed robbery with dangerous weapon (9 December 2002): fixed term of 5 years, commencing 4 June 2003, expiring 3 June 2008.
  • Armed robbery with dangerous weapon (29 December 2002): fixed term of 5 years, commencing 4 December 2003, expiring 3 December 2008.
  • Armed robbery with dangerous weapon (19 January 2003): fixed term of 5 years, commencing 4 June 2004, expiring 3 June 2009.
  • Robbery with offensive weapon (13 January 2003): fixed term of 4 years, commencing 4 December 2004, expiring 3 December 2008.
  • Carried in conveyance without consent (13 January 2003): fixed term of 2 years, commencing 4 December 2004, expiring 3 December 2006.
  • Armed robbery with dangerous weapon (24 November 2002), taking Form 1 matters into account: 8 years, commencing 4 June 2005, expiring 3 June 2013, with a non-parole period of 5 years commencing 4 June 2005 and expiring 3 June 2010.
  • Applicant eligible for parole from 3 June 2010.
  • Overall effect: head sentence of 10 years, non-parole period of 7 years.

Key Takeaways

  • Where a sentencing court finds special circumstances under the Crimes (Sentencing Procedure) Act 1999, that finding must be correctly reflected across the structure of all sentences where more than one sentence is involved, not merely in the individual sentence to which it is most directly applied.
  • Errors in the assembly of multiple partially accumulated sentences can infect the overall sentence structure even where individual sentences, viewed in isolation, might appear within range.
  • Under the totality principle, the Court of Criminal Appeal may correct structural sentencing errors by adjusting the accumulation of sentences rather than necessarily disturbing each individual sentence.
  • A Form 1 is to be taken into account on the specific head offence to which it is attached; departing from that linkage without basis may constitute a sentencing error, though in this case the Court addressed it as part of the broader restructuring exercise.
  • In dismissing the suggestion that intervention would produce an inadequate sentence, the Court of Criminal Appeal confirmed that appellate correction is warranted where identified errors would have led to a materially different and lesser overall sentence at first instance.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Crimes Act 1900 (NSW), ss 97(1), 97(2), 112, 154A(1)(a), 154A(1)(b), 154AA, 195(b)

Cases
- R v Henry (1999) 46 NSWLR 346
- R v LWP [2003] NSWCCA 215
- R v Pham (1991) 55 A Crim R 128
- R v Tarek Mohamadin [2004] NSWCCA 401
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Walker [2005] NSWCCA 109
- R v Wickham [2004] NSWCCA 193
- R v Youkhana [2004] NSWCCA 412