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Court of Criminal Appeal 2 December 2005

Moore v Regina

[2005] NSWCCA 407

Assault & violenceTheft & property
SENTENCE APPEAL MEANING OF "SUBSTANTIAL EMOTIONAL HARM" OFFENCE COMMITTED "IN COMPANY" WIDE DISCRETION OF SENTENCING JUDGE.

Citation: Moore v Regina [2005] NSWCCA 407
Court: NSW Court of Criminal Appeal
Date: 2 December 2005
Judge(s): Simpson J, Adams J, Hoeben J

Background

The applicant, a young man with no prior criminal record, pleaded guilty to two armed robbery offences committed in Queanbeyan in July 2004. The first involved robbing a pizza delivery driver of $120 by grabbing him from behind and threatening the use of a knife. The second involved robbing a taxi driver at knifepoint in the early hours of the morning, in company with two other males.

Notably, approximately three weeks after the offences, the applicant voluntarily telephoned police, admitted his involvement, provided his address, and asked police to come and arrest him. He made full admissions in a recorded interview. It was agreed that, but for his surrender, he may never have been identified or charged, as his co-offenders remained at large.

The applicant was sentenced in the District Court to an aggregate non-parole period of 14 months and an aggregate overall term of 25 months imprisonment, following a correction of arithmetic errors in the original sentences. He appealed against the severity of those sentences.

  • Whether the sentencing judge erred in treating "substantial emotional harm" to the victims as an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, given that the evidence may not have supported harm of that level
  • Whether the sentencing judge erred in treating the offences as committed "in company" as an aggravating factor, when that circumstance was already an element of the charged offences
  • Whether the sentencing judge failed to give sufficient weight to the applicant's voluntary surrender when he was not under any suspicion
  • Whether the sentencing judge erred by failing to consider a suspended sentence after the re-sentencing process

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Hoeben J delivered the principal judgment, with Simpson J and Adams J agreeing.

On the first two grounds, the Court accepted that the sentencing judge had fallen into error. The evidence did not clearly establish "substantial emotional harm" to the victims within the meaning of s 21A(2)(g), and treating the offence as committed "in company" as an aggravating factor was problematic where that circumstance was already inherent in the offence charged. These grounds of appeal were made out.

Despite those errors, the Court held that it would not intervene unless a less severe sentence was "warranted in law" and should have been passed, consistent with s 6(3) of the Criminal Appeal Act 1912 and the principle in R v Simpson. The Court was satisfied that the sentencing judge had, in substance, taken all relevant considerations into account and that the sentences fell well within the available range. The gravity of the offences and the need for general deterrence supported the custodial terms imposed.

On the question of voluntary surrender, the Court acknowledged that the applicant's conduct in coming forward when not under suspicion was a significant mitigating factor that warranted considerable recognition, and the sentencing judge had given it weight. On the question of a suspended sentence, the Court noted that counsel for the applicant had conceded at sentencing that a custodial term was necessary. The sentencing judge was not required to expressly consider and reject suspension in those circumstances, and the omission did not amount to error on the facts.

Simpson J added a separate observation that a full-time custodial sentence was, in her view, not merely open to the sentencing judge but was effectively inevitable given the nature of the offences, notwithstanding the very considerable sympathy the applicant's circumstances warranted.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Finding errors in the identification of aggravating factors does not automatically lead to appellate intervention: the Court of Criminal Appeal will only intervene if satisfied that a less severe sentence was warranted in law and should have been passed.
  • Under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, "substantial emotional harm" must be established on the evidence before it can be applied as an aggravating factor; an inference of distress from the circumstances alone may be insufficient.
  • Treating an offence as committed "in company" as a statutory aggravating factor is problematic where that circumstance already forms part of the definition of the offence charged, consistent with the principle in R v De Simoni.
  • Voluntary surrender to police when not under suspicion is a meaningful mitigating factor, but it does not override the objective gravity of serious offences or the need for general deterrence.
  • A sentencing judge is not required to expressly articulate and reject a suspended sentence in the course of reasons, particularly where defence counsel has conceded that a custodial sentence is warranted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 95(1), 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Markarian v The Queen (2005) 79 ALJR 1048
- Regina v De Simoni (1981) 147 CLR 303
- Regina v Henry (1999) 46 NSWLR 364
- R v Lattouf (unreported, NSWCCA, 12 December 1996)
- Regina v Leoni [1999] NSWCCA 14
- R v Simpson (2001) 53 NSWLR 704
- R v Solomon [2005] NSWCCA 158
- R v Youkhana [2004] NSWCCA 412
- R v Zamagias [2002] NSWCCA 17