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Court of Criminal Appeal 20 May 2005

R v Patti Anne Collins

[2005] NSWCCA 198

Theft & property
SENTENCE ARMED ROBBERY HENRY GUIDELINE

Citation: R v Patti Anne Collins [2005] NSWCCA 198
Court: Court of Criminal Appeal, New South Wales
Date: 20 May 2005
Judge(s): Simpson J, Buddin J, Hall J

Background

The applicant pleaded guilty in the Local Court to robbery whilst armed with an offensive weapon. She had entered a video store and threatened the store manager with a knife, demanding and receiving approximately $100 from the till. Police identified her through CCTV footage and later found her hiding under a bed at her home, where a matching knife was recovered.

The applicant was sentenced in the District Court to three years imprisonment with a non-parole period of 15 months. Three goods-in-custody offences were taken into account on a Form 1 document. The applicant was 48 years old at the time of the offence, had only two prior convictions (both for shoplifting), and had a long history of drug and alcohol dependency.

The applicant sought leave to appeal against the severity of the sentence on two grounds relating to the plea discount and the application of the guideline judgment in R v Henry.

  • Whether the sentencing judge gave insufficient regard to the utilitarian value of the guilty plea by failing to specifically identify or quantify the discount applied.
  • Whether the sentencing judge erred in applying the R v Henry guideline judgment for armed robbery, in particular by treating it as an overriding constraint on the exercise of sentencing discretion.

Decision

On the first ground, the Court acknowledged that the sentencing judge had not quantified the discount for the early plea of guilty, and noted this was an approach that left room for criticism in a straightforward case. However, the Court did not find this amounted to error. The sentencing judge had expressly found that the plea was entered at the first available opportunity, and the timeliness of the plea is a key element of its utilitarian value. There was no basis to conclude that an appropriate discount had not been allowed.

On the second ground, the applicant argued that the sentencing judge appeared to feel constrained by the Henry guideline rather than treating it as a guide informing the exercise of a genuine discretion. The Court rejected this submission. Crucially, the Court noted that the applicant's own counsel at the sentencing hearing had conceded that a full-time custodial sentence was inevitable and that the Henry guideline properly applied to the case. The sentencing judge was entitled to characterise the offence as very serious.

The Court identified that some error had occurred, but found that no less severe sentence was warranted in law under section 6(3) of the Criminal Appeal Act 1912. Statistical data from the Judicial Commission reinforced this conclusion: 82% of cases decided since Henry had resulted in full-time custody, and only approximately 15% of sentences for such offences had been less than the three years imposed here. The Court also observed that the non-parole period carried considerable leniency.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge is not strictly obliged to quantify the discount for a guilty plea, but the Court of Criminal Appeal reiterated that transparency in the process is important, particularly in straightforward cases, so that an appropriate discount can be seen to have been applied.
  • The strength of the Crown case does not affect the utilitarian value of a guilty plea. The Court confirmed this as a distinct consideration from the timeliness and circumstances of the plea itself.
  • Upholding the sentence, the Court applied section 6(3) of the Criminal Appeal Act 1912, under which an appeal will be dismissed where, even if error is established, no lesser sentence is warranted in law.
  • Where an applicant's own counsel at sentencing concedes that a guideline judgment applies and that full-time custody is inevitable, it is difficult to later argue on appeal that the sentencing judge erred by applying that guideline.
  • Judicial Commission sentencing statistics were considered by the Court of Criminal Appeal, though with acknowledgement of their inherent limitations, as a cross-check on the appropriateness of the sentence imposed.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2), s 21A(3)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Henry (1999) 46 NSWLR 346
- R v Thomson & Houlton (1999) 49 NSWLR 383
- R v Petrie (2003) 141 A Crim R 396
- R v Attard [2004] NSWCCA 376
- R v Sutton [2004] NSWCCA 225
- R v Drew [2005] NSWCCA 50