Citation: Regina v Taylor [2005] NSWCCA 242
Court: NSW Court of Criminal Appeal
Date: 28 June 2005
Judge(s): Grove J, Hoeben J, Hall J
Background
The appellant was convicted after a jury trial in the District Court at Tamworth on two counts: breaking, entering and stealing, and robbery whilst armed with a dangerous weapon. The offences were committed over late December 1997 and early January 1998, when the appellant was 18 years old. He and co-offenders broke into a neighbour's house and stole a safe containing firearms, then later carried out an armed home invasion seeking drugs and money.
The appellant's path to trial was significantly delayed. After his arrest in Darwin in May 2000, he was referred to the Mental Health Review Tribunal and was not found fit to stand trial until 2004. His co-offenders, Walters and Blackman, had been dealt with years earlier. Both pleaded guilty, cooperated with authorities, and received wholly non-custodial sentences: good behaviour bonds and suspended sentences.
The District Court sentenced the appellant to an effective aggregate of five years non-parole with a total term of seven and a half years. The appellant sought leave to appeal on three grounds: that the sentencing judge treated elements of the offence as additional aggravating factors, that the disparity with co-offenders was unjust, and that the sentences were manifestly excessive.
Legal Issues
- Whether the sentencing judge erred by treating the use of violence and use of a weapon as aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, when those matters were already elements of the offence charged
- Whether the disparity between the appellant's custodial sentence and the wholly non-custodial sentences imposed on co-offenders gave rise to a justifiable sense of grievance
- Whether the sentences were manifestly excessive, having regard to the appellant's significant mental health issues and the long delay before trial
Decision
On the first ground, the Court found the sentencing judge had erred. Under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, a court must not treat a statutory aggravating factor as additional to the elements of the offence if that factor is already an element of the offence charged. For robbery whilst armed with a dangerous weapon, the use of violence and the use of a dangerous weapon are elements of the offence itself. While the Crown argued the judge was permissibly measuring the actual level of violence as exceeding what was required to establish the offence, the Court found that was not what the judge said he was doing. His remarks showed he simply treated those matters as additional aggravating factors, which was an error.
On the parity ground, the Court acknowledged the significant difference in sentences but found the disparity was substantially explained by legitimate distinctions. The co-offenders had pleaded guilty, cooperated with authorities, and gave evidence against the appellant. Those factors entitled them to considerable leniency not available to the appellant who contested the charges. The Court noted that a previous Crown appeal against the leniency of the co-offenders' sentences had failed at first instance.
The Court proceeded to resentence the appellant. It took into account his mental health history, the lengthy delay before trial attributable to repeated findings of unfitness, and his pre-sentence custody of 404 days. The Court also found the two offences were more closely connected than the original sentence structure reflected, treating the first offence (acquiring the weapons) as preparatory to the second, which justified a lesser degree of accumulation than originally imposed.
Orders Made
- Leave to appeal granted
- Appeal allowed; sentences imposed in the District Court quashed
- Count 1 (breaking, entering and stealing): fixed term of two years and six months commencing 10 April 2003, expiring 9 October 2005
- Count 2 (robbery whilst armed with a dangerous weapon): non-parole period of two years commencing 10 April 2004, expiring 9 April 2006, with a total term of four years commencing 10 April 2004
- Effective overall sentence: non-parole period of three years, total term of five years
- Earliest parole eligibility: 9 April 2006
Key Takeaways
- Under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court cannot treat a prescribed aggravating factor as an additional matter in aggravation if that factor is already an element of the offence charged. The prohibition is express in the statute itself.
- Where a sentencing judge purports to apply aggravating factors without articulating that the actual conduct exceeded the minimum required to establish the offence, the Court of Criminal Appeal will not assume the judge was engaging in that permissible exercise.
- Significant disparity between a sentence and those imposed on co-offenders does not automatically establish a justifiable grievance. Guilty pleas and cooperation with authorities, including giving evidence against the accused, are recognised as entitling co-offenders to substantially greater leniency.
- A lengthy delay between offending and sentencing, caused by the offender's mental unfitness to stand trial, is a relevant mitigating factor in sentencing. It does not operate automatically but is part of the overall circumstances the sentencing court must weigh.
- Where two offences are found to be intimately connected, such that the first was preparatory to the second, a court may apply accumulation of sentences more modestly than if the offences were wholly discrete.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2) (aggravating factors in sentencing)
Cases
- No specific cases were cited in the portions of the judgment provided.