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15
Court of Criminal Appeal 28 April 2005

Regina v Solomon

[2005] NSWCCA 158

Also reported as (2005) 153 A Crim R 32
Assault & violenceTheft & property
CRIMINAL LAW SENTENCING S 21A(2) AGGRAVATING FACTORS

Citation: Regina v Solomon [2005] NSWCCA 158
Court: NSW Court of Criminal Appeal
Date: 28 April 2005
Judges: Grove J, Howie J, Latham J

Background

The applicant was convicted in the District Court of armed robbery and attempted armed robbery, both contrary to s 97 of the Crimes Act. The armed robbery involved the applicant and two others entering a Paddington jewellery store armed with iron bars, forcing the female proprietor to the floor, and stealing property worth $500,000 retail. The attempted armed robbery occurred approximately three weeks later at a cheesecake shop in Seven Hills, where the shopkeeper was pushed to the ground and kicked during a struggle, suffering a dislodged tooth and facial abrasions.

The applicant initially pleaded not guilty but changed his plea on the third day of trial after challenges to Crown evidence failed. The sentencing judge allowed a 10 per cent discount for the utilitarian value of those late pleas, and sentenced the applicant to a total term of 12 years with a non-parole period of 8 years across the robbery offences and a related bond breach.

The applicant sought leave to appeal against sentence, contending that inadmissible material in the victim impact statements had infected the sentencing exercise, and that the sentences imposed were manifestly excessive.

  • Whether victim impact statements containing inadmissible material (including references to separate incidents not involving the applicant, and commentary on the sentencing process) caused an error in the exercise of the sentencing discretion under s 21A of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentences imposed were manifestly excessive having regard to comparable cases

Decision

The Crown conceded that parts of both victim impact statements were inadmissible, including references in the jewellery store owner's statement to a separate robbery not involving the applicant, and in the cheesecake shop owner's statement to nine other robberies he had experienced. The Court acknowledged these portions should have been rejected had objection been taken. However, the Court found that the sentencing judge had not been shown to have relied on the inadmissible portions; the properly admissible parts of each statement independently supported a finding of significant harm to the victims.

The admissible portions of the jewellery store owner's statement described ongoing panic attacks, inability to leave the house, severe anxiety, and lasting economic harm to her business. The cheesecake shop owner's admissible material described physical injury from the assault, ongoing psychological effects, and a need to sell his business. The Court was satisfied the sentencing judge's reliance on victim harm as an aggravating factor under s 21A(2) was justified by this admissible material alone.

On manifest excess, the Court surveyed a range of comparable armed robbery sentencing decisions. While the total sentence was at the upper end of the range, the Court considered it appropriate given the objective seriousness of the offences, the actual violence involved in both incidents, and the fact that the applicant was subject to a good behaviour bond at the time he committed them. No error warranting appellate intervention was established.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Where a victim impact statement contains inadmissible material, the relevant question is whether the sentencing judge demonstrably relied on that material; no error arises if the admissible portions independently support the finding made.
  • Under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, harm to victims is a statutory aggravating factor, and properly admissible victim impact evidence can ground that finding even where other parts of the same statement should have been excluded.
  • A 10 per cent discount for the utilitarian value of a guilty plea entered on the third day of trial, after unsuccessful evidence challenges, was treated as within the sentencing judge's discretion and was not challenged on appeal.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a total sentence of 12 years with an 8-year non-parole period for two serious armed robbery offences involving actual violence, a significant property haul, and commission while on a good behaviour bond, was within the appropriate range.
  • Sentences drawn from comparable cases involving multiple armed robberies of a less violent nature were distinguished; the presence of actual physical violence and the scale of harm in each individual offence here justified the higher end of the sentencing range.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Crimes Act 1900 (NSW), s 97

Cases:
- R v Youkhana [2004] NSWCCA 412
- R v Henry (1999) 46 NSWLR 346
- R v Wickham [2004] NSWCCA 193
- R v Tozer [2003] NSWCCA 72
- R v Trad [2003] NSWCCA 213
- R v Dorsett [2002] NSWCCA 326
- R v Gonzales [2002] NSWCCA 287