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Court of Criminal Appeal 17 March 2005

Regina v HOUSE

[2005] NSWCCA 88

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE PLEA OF GUILTY ARMED ROBBERY WHETHER SENTENCE IMPOSED UNDULY SEVERE.

Citation: Regina v HOUSE [2005] NSWCCA 88
Court: NSW Court of Criminal Appeal
Date: 17 March 2005
Judge(s): Wood CJ at CL, Tobias JA, Buddin J

Background

The applicant pleaded guilty on the first day of trial to one count of armed robbery under s 97(1) of the Crimes Act 1900. He and a co-offender had entered a bakery at Emu Plains armed with a tyre lever and a socket wrench, ordering four people present (including two elderly owners and a pregnant staff member) into a confined area while stealing approximately $877 in cash and a staff member's wallet.

The District Court sentenced the applicant to four years and six months imprisonment with a non-parole period of three years, backdated to the date of arrest. A 15 per cent discount was applied for the utilitarian value of the late guilty plea, and special circumstances were found due to the applicant's need for drug rehabilitation, producing a non-parole period set at two-thirds of the head sentence.

The applicant sought leave to appeal, contending that the sentencing judge made several errors and that the sentence was unduly severe.

  • Whether the sentencing judge erred by treating the presence of a weapon as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999, given that possession of a weapon was already an element of the offence charged
  • Whether the sentencing judge made factual findings in aggravation that were not reasonably open on the evidence
  • Whether undue weight was given to community expectations and the prevalence of armed robbery when assessing the sentence
  • Whether the sentence imposed was unduly severe and warranted appellate intervention

Decision

On the first ground, the Court accepted that the weapon was an element of the offence itself and therefore could not, without more, be treated as an additional aggravating circumstance under s 21A. The Crown argued the reference was directed to the nature and extent of the weaponry (two separate implements), but the Court was not persuaded by that argument. The Court noted, however, that other properly aggravating circumstances were present: the offence was committed in company, there were multiple victims, the victims were vulnerable, and they were forcibly detained in a confined space. The mention of the weapon in the context of s 21A was described as "perhaps unfortunate," but not determinative of the appeal on its own.

On the factual errors ground, the Court found that an apparent overstatement of the number of $20 notes found on the applicant was plainly a slip of the tongue, not a substantive error. The Court was also satisfied that the sentencing judge properly understood the distinction between the chiller and the cool room, and correctly characterised the forced confinement of the victims as a serious aggravating circumstance regardless of which room was used.

On the community expectations and prevalence grounds, the Court confirmed that general deterrence is a legitimate and important sentencing consideration for armed robbery. The statistical evidence about sentencing trends and crime rates was insufficient to establish any specific error, and the Court observed that more detailed analysis would be appropriate only in the context of a guideline judgment.

On overall severity, the Court found the head sentence fell within the range identified in R v Henry [1999] 46 NSWLR 346 and that the objective seriousness of the offence was high. The applicant's subjective circumstances, including a 20-year history of dishonesty offences and a recently completed supervised bond, offered little mitigation. The Court declined to intervene, finding no other sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Where possession of a weapon is already an element of the offence charged, referencing that weapon as an aggravating circumstance under s 21A of the Crimes (Sentencing Procedure) Act 1999 risks double-counting, even if the error does not necessarily produce an appealable outcome where other legitimate aggravating factors support the sentence
  • A slip of the tongue in reciting figures does not amount to a finding of fact in aggravation, provided the overall assessment of objective seriousness is unaffected
  • Forced confinement of victims during an armed robbery, regardless of the degree of discomfort involved, constitutes a serious aggravating circumstance
  • General deterrence, community expectations, and the prevalence of armed robbery are recognised sentencing considerations in NSW courts, though detailed statistical analysis of sentencing trends is better suited to guideline judgment proceedings
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that Judicial Commission median sentence statistics have limited utility beyond providing a general sentencing range, and that using the median as a trigger for appellate intervention would progressively reduce sentences over time

Legislation and Cases Referenced

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

Cases
- R v Henry [1999] 46 NSWLR 346
- R v Spiero (1979) 22 SASR 543
- R v Perrett [1999] NSWCCA 115
- R v Bloomfield NSWCCA, 15 July 1998
- R v Sharma (2002) 130 A Crim R 238
- Application by the Attorney General Under s 37 (Sentencing Procedure) Act [2004] NSWCCA 303
- R v Downie and Dandy [1998] 2 VR 517
- R v H (1980) 3 A Crim R 53
- R v Hayes (1983) 11 A Crim R 187
- R v Broxham NSWCCA, 3 April 1986
- R v Petrinovic NSWCCA, 18 September 1990
- R v Stefanovski NSWCCA, 9 June 1994
- R v Underhill 9 May 1986