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Court of Criminal Appeal 1 March 2005

Regina v Lesi

[2005] NSWCCA 63

Assault & violenceTheft & property
CRIMINAL LAW AND PROCEDURE SENTENCE PARITY CO OFFENDER NOT DOUBLY SENTENCED

Citation: Regina v Lesi [2005] NSWCCA 63
Court: Court of Criminal Appeal, New South Wales
Date: 1 March 2005
Judge(s): Grove J, Bell J, Buddin J

Background

The applicant pleaded guilty to a series of serious offences arising from two separate armed robberies in 2002. The first involved a robbery in company at a hotel in Annandale in February 2002, during which over $40,000 was taken and several staff members were assaulted. The second involved an armed robbery at a tavern in Smithfield in June 2002, where the applicant used a replica pistol, forced employees into a rear office, and escaped in a stolen vehicle before ultimately being arrested in November 2002.

The sentencing judge in the District Court imposed an effective total sentence of eight years and six months, with a non-parole period of six years from the date of arrest. The applicant sought leave to appeal on the ground that the sentences were excessive, raising four specific grounds of error.

  • Whether the sentencing judge erred by failing to set a non-parole period for the Smithfield armed robbery count
  • Whether the Henry guideline (governing robbery in company sentences) was applied inappropriately to the Annandale offence
  • Whether the applicant was effectively sentenced twice for the same conduct by reason of both a separate charge and related Form 1 matters involving the same victim
  • Whether the sentencing judge applied the wrong test when assessing whether to depart below the Henry guideline, by requiring "exceptional circumstances"

Decision

On the first ground, the Court noted that the sentencing judge had not recorded reasons for declining to set a non-parole period for the Smithfield robbery, as required by statute. However, the omission did not invalidate the sentence. Because the fixed term imposed for that offence ran concurrently with, and was identical in length to, the non-parole period for the Annandale robbery, the Court found there was no practical consequence, and the ground was not sustained.

The Court rejected the argument that the Henry guideline had been applied to the wrong offence. The robbery at the Annandale hotel clearly fell within the guideline's scope as a robbery in company, and the sentencing judge was entitled to use it. The applicant's attempt to characterise this as an error failed.

On double punishment, the Court found no basis for concluding the applicant was sentenced twice for the same conduct. The sentencing judge's reference to the assault on a particular victim during remarks on culpability was a recitation of the Crown's submission. The charges were properly discriminated, and not all persons present at the hotel were named in the charges.

The Court accepted the applicant's argument on the third ground, finding that the sentencing judge had applied too high a test by requiring "exceptional circumstances" before departing below the Henry guideline. That is an incorrect standard. Despite upholding this ground, the Court concluded that a lesser sentence was not warranted in law having regard to all the circumstances. The overall sentence lay within the sound exercise of sentencing discretion, and the fourth ground of manifest excess also failed.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Requiring "exceptional circumstances" to justify a sentence below the Henry guideline for robbery in company sets too high a test. That standard is incorrect, but its application does not automatically warrant appellate intervention to reduce the sentence.
  • A failure to record reasons for not setting a non-parole period, as required under s 45(2) of the Crimes (Sentencing Procedure) Act 1999, does not invalidate the sentence by virtue of s 45(4).
  • Where a fixed term imposed for one offence is concurrent with, and identical in length to, a non-parole period set for another, no practical injustice arises from the absence of a separate non-parole period.
  • No double punishment arises simply because conduct is addressed through both a substantive charge and a Form 1 matter, provided the sentencing court is alert to the distinct roles of nominated victims versus other persons present.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal will only intervene in a sentence appeal if a lesser sentence is warranted in law. Identifying an error in reasoning does not automatically produce that outcome.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45(2), s 45(4)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Henry (1999) 46 NSWLR 346
- R v Murchie (1999) 108 A Crim R 482
- Pearce v The Queen (1998) 194 CLR 610
- R v Smith (2004) 144 A Crim R 577
- R v Stanley [2003] NSWCCA 233