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Court of Criminal Appeal 12 September 2005

Regina v Newham

[2005] NSWCCA 325

Sexual offencesAssault & violenceTheft & property
CRIMINAL LAW AND PROCEDURE SENTENCE CROWN CONCESSIONS RESENTENCE APPROPRIATE

Citation: Regina v Newham [2005] NSWCCA 325
Court: NSW Court of Criminal Appeal
Date: 12 September 2005
Judges: Mason ACJ, Grove J, Buddin J

Background

The appellant pleaded guilty in the District Court to robbery, assault accompanied by an act of indecency, and assault occasioning actual bodily harm in company, all arising from a single violent episode on 29 October 2003. The offences involved the appellant taking a victim to an isolated location, stripping and robbing him, assaulting him repeatedly, exposing himself, and returning to search the victim's home before stealing property. A co-offender, Krause, was present throughout but played a significantly lesser role.

The sentencing judge in the District Court imposed an effective head sentence of six years with a non-parole period of three years and six months. In arriving at that sentence, the judge made express reference to section 21A of the Crimes (Sentencing Procedure) Act 1999, which lists aggravating and mitigating factors a court must take into account.

The appellant sought leave to appeal on the ground of severity, pointing to a number of specific sentencing errors identified in the judge's remarks, in addition to a general complaint that the sentences were manifestly excessive.

  • Whether the sentencing judge erred by treating the offences as involving "a series of criminal acts" as an aggravating factor under section 21A, in circumstances where that characteristic was already an element or ingredient of the charges
  • Whether the sentencing judge erred by relying on the appellant's prior convictions for assault occasioning actual bodily harm as an aggravating factor without addressing the qualification in section 21A(4)
  • Whether surrounding circumstances that would have elevated the offending into a more serious category than the offence actually charged could properly be used to aggravate the sentence for the lesser charge
  • Whether, given those errors, resentencing was warranted or whether the original sentences fell within a sound exercise of discretion under section 6(3) of the Criminal Appeal Act 1912

Decision

The Crown conceded three distinct errors in the sentencing remarks. First, the judge's reliance on the "series of criminal acts" as an aggravating factor was erroneous, consistent with the Court of Criminal Appeal's earlier decisions in R v Tadrosse and R v Tzanis, which had confirmed that a factor already forming an ingredient of the offence cannot also be counted as additional aggravation. Second, the judge cited the appellant's prior assault convictions as aggravating without reference to the limiting provision in section 21A(4). Third, the judge appeared to take into account surrounding circumstances that would have supported a more serious charge than the one actually prosecuted, which the case law (including R v Di Simoni) does not permit in the way applied.

The Crown did not concede, however, that the sentences should be reduced, arguing they remained within a sound discretionary range notwithstanding the errors. The Court rejected that position. The multiple conceded errors, considered together, were sufficient to vitiate the sentence and required the Court to resentence.

Grove J, with whom Mason ACJ and Buddin J agreed, noted that by the time of the appeal the appellant had demonstrated a commendable response to custody: he had engaged with educational programmes, returned negative drug tests, and had no charges recorded against him in prison. Those matters placed him in a more favourable position for the purposes of resentencing than he had been at first instance.

The Court reduced the overall sentence, retaining the structural pattern adopted by the sentencing judge. The aggregate effect of the new sentences produced a shorter period of actual custody, with the earliest parole eligibility date set at 5 May 2006.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • District Court sentences quashed
  • On count 1 (robbery, taking Form 1 matters into account): imprisonment with a non-parole period of 1 year and 9 months commencing 6 August 2004, expiring 5 May 2006, with a total term of 4 years commencing 6 August 2004
  • On count 2 (assault with act of indecency): fixed term of 9 months commencing 6 November 2003, expiring 5 August 2004
  • On count 3 (assault occasioning actual bodily harm in company): fixed term of 18 months commencing 6 May 2004, expiring 5 November 2005
  • Fixed terms on counts 2 and 3 imposed because those terms expire before the first parole eligibility date of 5 May 2006

Key Takeaways

  • Under section 21A of the Crimes (Sentencing Procedure) Act 1999, a sentencing court cannot treat a characteristic that is already an ingredient of the offence as an additional aggravating factor; doing so amounts to impermissible double-counting.
  • Prior convictions cannot be relied upon as an aggravating factor under section 21A(2)(d) without also addressing the qualification contained in section 21A(4), which limits the circumstances in which prior offending may aggravate a sentence.
  • Following R v Di Simoni, surrounding circumstances that would have elevated the offending into a more serious category than the charge actually laid cannot properly be used to aggravate the sentence for the lesser offence charged.
  • Where the Crown concedes multiple sentencing errors, a court will not necessarily be satisfied that the original sentences were nonetheless within the range of a sound exercise of discretion; accumulated errors can together compel resentencing even where any single error might not.
  • Positive post-sentence conduct in custody, including programme participation and clean disciplinary and drug-testing records, is relevant to resentencing and can support a more favourable outcome than the original sentence.

Legislation and Cases Referenced

Legislation:
- Section 61L, Crimes Act 1900 (NSW)
- Section 21A, Crimes (Sentencing Procedure) Act 1999 (NSW)
- Section 6(3), Criminal Appeal Act 1912 (NSW)

Cases:
- R v Blair [2005] NSWCCA 78
- R v Di Simoni (1981) 147 CLR 383 (High Court)
- R v Solomon [2005] NSWCCA 158
- R v Street [2005] NSWCCA 139
- R v Tadrosse [2005] NSWCCA 145
- R v Tzanis [2005] NSWCCA 274
- R v Youkhana [2004] NSWCCA 412