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Court of Criminal Appeal 6 December 2005

Spinks v R

[2005] NSWCCA 459

Theft & propertyFirearms & weapons
CRIMINAL LAW AND PROCEDURE SENTENCE MULTIPLE OFFENCES OF ARMED ROBBERY NO INTERVENTION CALLED FOR

Citation: Spinks v R [2005] NSWCCA 459
Court: NSW Court of Criminal Appeal
Date: 6 December 2005
Judge(s): Grove J, Studdert J, Whealy J

Background

The applicant pleaded guilty in the Local Court to four counts of aggravated robbery and was committed to the District Court for sentence. Each count carried a maximum of 25 years imprisonment. The robberies, committed over a three-week period in June and July 2003, involved the applicant and a co-offender using a shortened .22 calibre rifle to hold up newsagencies, a bottle shop, and a wine cellar across western Sydney. Additional robberies were taken into account on two separate Form 1 documents (a procedural mechanism by which offenders acknowledge further offences for sentencing purposes without being formally convicted of them).

The sentencing judge at Campbelltown District Court, English DCJ, imposed a series of partly cumulative sentences. The effective overall sentence was 15 years imprisonment with a non-parole period of 8 years and 9 months, applied to count two. All sentences on the remaining counts fell within that non-parole period, making the structure in practice wholly concurrent. A 25 per cent discount was applied for the guilty pleas.

The applicant sought leave to appeal, arguing the sentence was manifestly excessive and that the sentencing judge erred in her approach to the Form 1 matters and gave insufficient weight to mitigating factors.

  • Whether the total effective sentence of 15 years was manifestly excessive
  • Whether the sentence on count two individually was manifestly excessive
  • Whether the sentencing judge erred in her approach to the Form 1 offences
  • Whether the sentencing judge gave insufficient weight to mitigating factors, including contrition, limited harm to victims, and prospects of rehabilitation

Decision

The Court of Criminal Appeal found no error warranting intervention. Grove J acknowledged that while the sentence structure was unusual (being described as partly cumulative but operating as wholly concurrent), the effective sentence of 15 years with an 8 year and 9 month non-parole period was comfortably within the range of a sound exercise of sentencing discretion. The sentences on counts one, three, and four were entirely subsumed within the non-parole period on count two, and the structure also effectively absorbed the sentences the applicant had received at Port Macquarie for unrelated offences.

On the Form 1 grounds, Grove J rejected the submission that the judge had erred. The Form 1 offences were properly taken into account in determining the appropriate sentence on the individual counts to which they attached, and the overall criminality was substantial.

The Court also rejected the argument that mitigating factors were insufficiently weighed. Grove J noted that the extended non-parole period was set considerably shorter than the remainder of the total term precisely to allow a lengthy period of supervised rehabilitation, a concession made expressly in the applicant's favour. The applicant had committed these offences while on conditional liberty for the third time, and the sentencing judge's weighing of mitigatory circumstances disclosed no error.

Statistical comparisons and comparative cases cited by senior counsel were of limited assistance in the circumstances, given that the criminality in this case was appropriately assessed through the lens of the single enveloping sentence on count two rather than through conventional cumulative sentencing analysis.

Orders Made

  • Leave to appeal against sentence refused

Key Takeaways

  • Where multiple sentences are structured so that all but one are wholly subsumed within the longest non-parole period, the Court of Criminal Appeal will assess whether the effective enveloping sentence falls within the discretionary range, rather than analysing each individual sentence in isolation.
  • A sentencing court may depart favourably from the statutory ratio between non-parole period and total term in order to extend the period of supervised rehabilitation, and doing so does not constitute error.
  • Comparative sentence statistics and case authorities are of reduced utility where the sentencing structure departs from the conventional cumulative approach endorsed in Pearce v The Queen.
  • No error was established in the treatment of Form 1 offences where each group was properly attached to the most relevant head sentence and the overall criminality was reflected in the effective term.
  • Committing serious offences while on conditional liberty for a third time is a factor that weighs against finding the effective sentence manifestly excessive.

Legislation and Cases Referenced

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Johnson v The Queen (2004) 78 ALJR 616
- Mill v The Queen (1988) 166 CLR 59
- AG's Application under s 37 of Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37 (referenced via the AG's Application case)