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Court of Criminal Appeal 25 July 2005

Bottin v R

[2005] NSWCCA 254

Assault & violenceTheft & propertyFirearms & weapons

Citation: Bottin v R [2005] NSWCCA 254
Court: NSW Court of Criminal Appeal
Date: 25 July 2005
Judge(s): Studdert J (primary judgment); Kirby J and Howie J (agreeing)

Background

The appellant was convicted of armed robbery following a trial in the District Court. He subsequently pleaded guilty to three further offences arising from a separate incident: specially aggravated enter with intent to commit a serious indictable offence, attempting to use an offensive weapon to prevent lawful apprehension, and possessing a firearm without authorisation.

The armed robbery involved the appellant entering a car rental business in September 2001 wearing a disguise, presenting a firearm at an employee's head, and demanding cash and vehicle keys. The remaining offences arose from an incident in December 2001 in which the appellant was found inside a secure apartment complex, produced a loaded .44 calibre revolver and pointed it at a building manager's head during a struggle, before being subdued and disarmed by bystanders.

In the District Court, Kinchington DCJ imposed concurrent fixed-term sentences for the guilty plea offences and a partially cumulative sentence of nine years (with a five-year non-parole period) for the armed robbery. The overall structure produced an aggregate non-parole period of seven years with a four-year parole tail. The appellant sought leave to appeal, arguing the armed robbery sentence was excessive.

  • Whether the leave application should be granted out of time, given delays in obtaining legal aid and administrative failures in the appeals process.
  • Whether the sentence imposed for armed robbery was manifestly excessive or otherwise outside the sentencing discretion available to the judge.
  • Whether the sentencing judge's misdirection as to the maximum penalty for the relevant offence (stating 25 years instead of the correct 20 years under s 97(1) of the Crimes Act) required the Court of Criminal Appeal to intervene and re-sentence.

Decision

On the question of time extension, the Court granted the extension. The appellant had never intended to abandon the appeal, delays were attributable to legal aid communication breakdowns and a procedural rejection of a refiled notice, and affidavit evidence adequately explained the non-compliance.

The Court observed that the sentences for the guilty plea offences were within the available discretionary range and were, in fact, described as extremely lenient given they were served concurrently. No challenge was brought to those sentences or to the partial accumulation structure. The sole contest was the nine-year term for the armed robbery.

The Court acknowledged the armed robbery sentence was towards the upper end of the range established since R v Henry, but found it remained below 50 per cent of the applicable maximum. The offence involved planning, disguise, a firearm pointed directly at the victim's head, and the victim gave evidence of genuine fear for his life. Those features warranted stern punishment and the sentence was not shown to be outside the judge's discretion.

The sentencing judge did err by stating the maximum penalty as 25 years (applicable to s 97(2) aggravated robbery) when the correct maximum under s 97(1) was 20 years. The Court could not entirely dismiss the possibility that this misdirection affected the outcome. However, applying ss 6(3) and 7(1A) of the Criminal Appeal Act, the Court assessed the total criminality across all offences and concluded that the aggregate result of seven years' non-parole period and four years' parole was appropriate and no lesser punishment was warranted. Intervention was therefore not justified.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A misdirection by a sentencing judge as to the applicable maximum penalty does not automatically require appellate intervention; under ss 6(3) and 7(1A) of the Criminal Appeal Act, the Court of Criminal Appeal examines the total criminality across all offences and will decline to interfere where the overall sentencing outcome is appropriate.
  • In dismissing the appeal, the Court confirmed that a sentence for armed robbery can sit near the upper range of comparable cases and still remain within the sentencing discretion, particularly where the offence involved planning, disguise, a firearm pointed at a victim's head, and credible evidence of fear for life.
  • Where concurrent sentences for related offences are extremely lenient and unchallenged, appellate review of the cumulative structure focuses on whether the aggregate result is proportionate to the offender's total criminality.
  • Administrative and legal aid delays, supported by affidavit evidence of a continuing intention to appeal, can constitute sufficient grounds to extend the time for filing a notice of intention to seek leave under r 3A of the Criminal Appeal Rules.
  • The Court of Criminal Appeal took the opportunity to discourage the practice of sentencing judges passing sentences orally but publishing reasons only in written form, noting that oral delivery allows those present in court (including victims and their families) to hear reasons in full and permits immediate correction of apparent errors.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B, 97(1), 97(2), 111(3)
- Criminal Appeal Act 1912 (NSW), ss 6(3), 7(1A)
- Criminal Appeal Rules, r 3A
- Firearms Act 1996 (NSW), s 7

Cases
- R v Henry (1999) 46 NSWLR 346
- R v Carr (2002) 135 A Crim R 171
- R v Shankley [2003] NSWCCA 253