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7
Court of Criminal Appeal 1 June 2005

R v Harris

[2005] NSWCCA 204

Assault & violenceTheft & propertyFirearms & weapons

Citation: R v Harris [2005] NSWCCA 204
Court: NSW Court of Criminal Appeal
Date: 1 June 2005
Judge(s): Studdert J, Howie J, Latham J

Background

The appellant was sentenced in the District Court on 27 August 2004 in respect of two charges of armed robbery committed on consecutive days in June 2003. The first offence involved entering an ANZ bank branch armed with two kitchen knives and robbing tellers of $867. The second involved robbing a pharmacy of approximately $1,000 in cash and a quantity of prescription drugs. The appellant was arrested at a nearby railway station shortly after the pharmacy robbery.

A third matter, an attempted armed robbery of a Commonwealth Bank branch on the same day as the pharmacy robbery, was taken into account at sentencing on a Form 1 (a formal mechanism under the Crimes (Sentencing Procedure) Act allowing additional offences to be considered without separate conviction).

The District Court imposed a fixed term of three years and six months for the first offence, and a partially accumulated sentence for the second offence with a non-parole period of three years and a total term of five years. The appellant sought leave to appeal, arguing the sentences were manifestly excessive.

  • Whether the sentences imposed for the two armed robbery offences, individually and as an effective total, were manifestly excessive
  • Whether the sentencing judge gave sufficient weight to favourable subjective circumstances, including the appellant's supportive family, remorse, efforts at rehabilitation, and personal tragedies
  • Whether the starting point adopted by the sentencing judge was inconsistent with the guideline judgment in R v Henry (1999) 46 NSWLR 346, which provides guidance on sentencing for armed robbery

Decision

The Court of Criminal Appeal found no error in the sentencing judge's approach. Studdert J, with Howie and Latham JJ agreeing, noted that the fixed term imposed for the first offence fell within the range indicated in R v Henry. The partial accumulation of the sentence for the second offence was also found to be without error.

On the second offence, the Court accepted that the sentencing judge was required to take into account the Form 1 matter involving the attempted Commonwealth Bank robbery. Viewed in that context, a non-parole period of three years and a total term of five years was within the available sentencing range.

The Court acknowledged the appellant's favourable subjective circumstances, including his youth (23 at the time of sentencing), drug dependency history, family support, remorse demonstrated through letters to victims, and significant personal losses. However, these features had already been reflected in the sentencing judge's twenty-five percent discount for the guilty pleas. No further basis for disturbing the sentences was established.

The Court found the objective criminality to be high and noted that considerations of both general and specific deterrence supported the sentences as imposed. The sentencing judge's comprehensive remarks disclosed no error in approach.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a non-parole period of three years and a total term of five years for an armed robbery involving weapons, threats to victims, and a Form 1 matter fell within the available sentencing range.
  • The guideline judgment in R v Henry (1999) 46 NSWLR 346 remained the applicable reference point for armed robbery sentencing, though the presence of a Form 1 matter can justify a sentence that exceeds the upper term indicated in that guideline.
  • Favourable subjective circumstances, including remorse, rehabilitation efforts, drug dependency history, and family support, do not automatically reduce a sentence below the range justified by the objective seriousness of the offending.
  • A twenty-five percent discount for guilty pleas was treated as the mechanism through which subjective considerations were already reflected, and no separate further reduction was warranted.
  • Partial accumulation of sentences for offences committed on consecutive days was available and, on the facts here, disclosed no error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97 (armed robbery, maximum penalty 20 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW) (Form 1 procedure)

Cases:
- R v Henry (1999) 46 NSWLR 346 (NSW Court of Criminal Appeal guideline judgment on armed robbery sentencing)