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Court of Criminal Appeal 3 February 2005

R v HERNANDO

[2005] NSWCCA 59

Assault & violenceTheft & property

Citation: R v Hernando [2005] NSWCCA 59
Court: NSW Court of Criminal Appeal
Date: 3 February 2005
Judge(s): Hulme J, Studdert J

Background

The applicant, a man born in January 1982 with a prior record for robbery in company and related offences, was sentenced in the District Court in February 2004 for six offences of armed robbery and assault with intent to rob while armed with an offensive weapon. The offences occurred over two days in August 2002, each involving the production of a knife against victims on trains or in carparks, accompanied by threats to stab and the inspection of victims' driver's licences to imply knowledge of their home addresses.

At the time of the offences the applicant was on parole. He had failed to comply with parole conditions, and his parole was subsequently revoked. The sentencing judge in the District Court (Marien DCJ) imposed cumulative sentences resulting in an effective total sentence, with both sets of sentences backdated to 11 October 2003, the date to which the revoked parole period had been extended.

The applicant sought leave to appeal on two grounds: first, that the sentencing judge improperly treated elements of the offences as aggravating features under section 21A of the Crimes (Sentencing Procedure) Act; and second, that the sentencing judge erred by not further backdating the sentence to run concurrently with the revoked parole period.

  • Whether the sentencing judge contravened section 21A(2) of the Crimes (Sentencing Procedure) Act by treating the use of threatened violence and a weapon as aggravating factors, when those elements were already ingredients of the offences charged.
  • Whether the failure to backdate sentences to overlap with the revoked parole period constituted double punishment, amounting to a sentencing error.

Decision

Ground 1 (Section 21A): Error established, but insufficient to change the outcome

Section 21A(2) of the Crimes (Sentencing Procedure) Act expressly prohibits a court from treating a statutory aggravating factor as an additional sentencing consideration if that factor is already an element of the offence charged. Each offence here incorporated being armed with an offensive weapon, and robbery itself inherently involves violence or the threat of it. The sentencing judge had expressly identified threatened violence and the use of a knife as aggravating features. Hulme J found this ground made out.

Ground 2 (Backdating and double punishment): Assumed correctness but found no error on the facts

The Court acknowledged the line of authority suggesting that revoking parole and then not backdating the fresh sentence to account for the revocation period can, in some circumstances, amount to double punishment. However, Hulme J declined to express a concluded view on the general principle, finding it unnecessary to do so. On the facts, there was ample independent justification for the parole revocation entirely separate from the commission of the subject offences, including the applicant's failure to report, failure to reside at an agreed address, and abandonment of his drug rehabilitation obligations.

Proviso: Sentence was extraordinarily lenient

Although the Court accepted that one error under Ground 1 was established, it applied section 6(3) of the Criminal Appeal Act, which requires dismissal of an appeal where the court is satisfied that no substantial miscarriage of justice has actually occurred. Hulme J assessed the effective sentence as "extraordinarily lenient" when measured against the guideline in R v Henry (1999), which concerned a young offender with little criminal history facing a single offence. The applicant had an extensive record of similar offences, was on conditional liberty at the time, entered a late plea in respect of one matter, and was being sentenced for five or six offences in total. No lesser sentence than that imposed was warranted.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Under section 21A(2) of the Crimes (Sentencing Procedure) Act, a sentencing court commits an error if it expressly treats threatened violence or use of a weapon as an aggravating feature in circumstances where those matters are already elements of the specific offence charged.
  • An established sentencing error does not automatically lead to a successful appeal: section 6(3) of the Criminal Appeal Act requires the Court of Criminal Appeal to dismiss an appeal if no substantial miscarriage of justice has actually occurred.
  • Where a sentence, despite containing a discernible error, is already more lenient than the applicable guideline would indicate, the proviso applies and the appeal will be dismissed.
  • The principle that revocation of parole combined with a non-backdated fresh sentence may amount to double punishment was acknowledged but not finally resolved; the Court found the parole revocation here was independently justified on grounds unrelated to the new offending.
  • In dismissing the appeal, the Court confirmed that the guideline in R v Henry contemplates a single offence by a young person with little prior history, and does not set a ceiling applicable where an offender has an extensive record of broadly similar offending and was on conditional liberty at the time of the new offences.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2) (aggravating and mitigating factors at sentencing)
- Criminal Appeal Act 1912 (NSW), s 6(3) (proviso requiring dismissal where no substantial miscarriage of justice)

Cases
- R v Henry (1999) 44 NSWLR 346 (guideline judgment on armed robbery sentencing)