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Court of Criminal Appeal 20 May 2005

REGINA v. FRANKS

[2005] NSWCCA 196

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE AGGRAVATING FACTOR MANIFESTLY EXCESSIVE SENTENCE HENRY GUIDELINE STARTING POINT.

Citation: Regina v Franks [2005] NSWCCA 196
Court: NSW Court of Criminal Appeal
Date: 20 May 2005
Judge(s): Hall J (with Simpson J and Buddin J agreeing)

Background

The applicant pleaded guilty in the District Court to five charges arising from an armed robbery at a football club in Wagga Wagga on 6 June 2003. The offences included robbery whilst armed with a dangerous weapon (s.97(2), Crimes Act 1900), threatening to use a firearm to avoid apprehension (s.33B(1)(a)), taking a conveyance without consent, unlicensed possession of a firearm, and resisting a police officer. A co-offender was sentenced separately on a lesser charge of robbery in company.

The sentencing judge, Norrish DCJ, imposed a total effective sentence of 10 years and 5 months, with a non-parole period of 6 years. The two principal sentences were four years for the s.33B(1)(a) offence and nine years (with a non-parole period of four and a half years) for the s.97(2) offence, the latter running cumulatively by 18 months on the former.

The applicant sought leave to appeal, arguing that the sentencing judge had wrongly treated certain factors as aggravating circumstances when those factors were already elements of the offences themselves. He also argued the sentence was manifestly excessive.

  • Whether the sentencing judge wrongly took into account aggravating factors under s.21A(2) of the Crimes (Sentencing Procedure) Act 1999 that were already elements of the charged offences.
  • Whether the resulting sentence was manifestly excessive in light of that error.
  • Whether the Henry guideline judgment (Henry (1999) 46 NSWLR 346) was correctly applied in identifying the appropriate sentencing range for the armed robbery offence.

Decision

The Court found that the sentencing judge had erred by treating certain factors as aggravating circumstances under s.21A(2) when those same factors formed part of the definition of the offences themselves. To use an element of an offence as a separate aggravating factor in sentencing for that same offence is an error of law: the conduct has already been accounted for in the legislature's prescription of the maximum penalty.

In relation to the Henry guideline, the Court confirmed that the guideline provides a sentencing range rather than a fixed starting point. Adjustment above or below the range is appropriate depending on the circumstances of a particular case. The Court found that the sentencing judge had not misapplied the Henry guideline as a rigid standard, but the errors concerning aggravating factors had nonetheless infected the sentences for both the s.33B(1)(a) and s.97(2) offences.

The Court concluded that the erroneous consideration of aggravating factors had contributed to sentences that were, in some measure, higher than they should have been. A reduction of six months was warranted on each of the two principal sentences. The remaining sentences were not disturbed.

Orders Made

  • Leave to appeal granted.
  • Appeal granted in part.
  • The four-year fixed term for the s.33B(1)(a) offence quashed; a fixed term of three and a half years (6 June 2003 to 5 December 2006) substituted.
  • The nine-year sentence for the s.97(2) offence quashed; a total sentence of eight and a half years (6 December 2004 to 5 June 2013) with a non-parole period of four years (6 December 2004 to 5 December 2008) substituted.
  • Earliest eligible parole date: 5 December 2008.

Key Takeaways

  • Under s.21A(2) of the Crimes (Sentencing Procedure) Act 1999, a factor that constitutes an element of the offence charged cannot be used as a separate aggravating circumstance at sentencing; doing so amounts to a legal error.
  • Where such an error is established, the Court of Criminal Appeal will assess whether it caused the overall sentence to be manifestly excessive, and will reduce the sentence accordingly.
  • The Henry guideline judgment establishes a sentencing range for armed robbery offences, not a fixed starting point; departure from that range, either upward or downward, remains available where case-specific circumstances warrant it.
  • A sentencing error affecting two discrete offences in a multi-charge matter can result in partial reduction of the total sentence without disturbing the remaining sentences on the other counts.
  • In dismissing most grounds and granting only partial relief, the Court of Criminal Appeal confirmed that multiple errors need not produce wholesale resentencing if their effect can be isolated and corrected by targeted reduction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss.33B(1)(a), 58, 61, 97(1), 97(2), 154A(1)(a), 154A(1)(b), 195
- Crimes (Sentencing Procedure) Act 1999 (NSW), s.21A
- Firearms Act (NSW), s.7(1)
- Criminal Appeal Act 1912 (NSW), s.6(3)

Cases:
- Henry (1999) 46 NSWLR 346
- Foster (1995) 78 A Crim R 517
- Mohamadin [2004] NSWCCA 401
- Milojevic [2001] NSWCCA 461
- Hemsley [2004] NSWCCA 228