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Court of Criminal Appeal 3 April 2006

Tapueluelu v R

[2006] NSWCCA 113

Assault & violenceTheft & propertyFirearms & weapons
ROBBERY IN COMPANY ROBBERY ARMED WITH OFFENSIVE WEAPON PLEAS OF GUILTY IMPRISONMENT FOR EIGHT YEARS, NON PAROLE PERIOD OF SIX YEARS PROSPECTS OF REHABILITATION

Citation: Tapueluelu v R [2006] NSWCCA 113
Court: NSW Court of Criminal Appeal
Date: 3 April 2006
Judge(s): Simpson J, Grove J, Howie J

Background

The applicant pleaded guilty in the District Court to two counts under s 97 of the Crimes Act 1900: robbery in company and robbery armed with an offensive weapon. Each offence involved a liquor store. The first, committed in February 2003, involved the applicant acting with an unidentified co-offender who produced a handgun; the second, in October 2003, was carried out by the applicant alone using a semi-automatic firearm.

Marien DCJ sentenced the applicant to a fixed term of four years for the first offence, with a partially accumulated term of five years (non-parole period of three years) for the second. The total effective sentence was eight years with a six-year non-parole period.

The applicant sought leave to appeal on the grounds that the sentencing judge had made errors in relation to his age, the use of his Children's Court history, joint criminal liability for the co-offender's weapon, a failed application of a "special circumstances" finding, and overall manifest excess.

  • Whether the sentencing judge erred in using the applicant's correct age, given he was told an incorrect date of birth
  • Whether prior offences dealt with in the Children's Court could lawfully be taken into account in sentencing
  • Whether the applicant could be held responsible, under joint criminal enterprise, for the co-offender's possession of an offensive weapon during the first offence
  • Whether the sentencing judge's stated intention to find "special circumstances" (justifying a variation to the standard one-third ratio between non-parole period and head sentence) was actually implemented in the aggregate sentence
  • Whether the overall sentence was manifestly excessive

Decision

The court rejected the ground concerning the applicant's age. The sentencing judge had been given an incorrect date of birth, but any resulting error was minor and did not produce an appealable outcome.

On the Children's Court records, the court considered whether those prior matters could be placed before the sentencing judge. Under the relevant provisions of the Children (Criminal Proceedings) Act 1987, evidence of offences dealt with in the Children's Court is admissible if there has been no crime-free period of two years since that time. The court found that condition was satisfied on the facts, so the sentencing judge did not err in taking those matters into account.

The court also rejected the ground relating to joint criminal liability for the weapon. The offence of robbery in company under s 97 of the Crimes Act 1900 is itself aggravated by a co-offender's possession of an offensive weapon. That aggravation was properly attributed to the applicant through principles of joint criminal enterprise.

However, the court upheld the ground concerning special circumstances. The sentencing judge had expressly stated an intention to vary the standard statutory ratio between the head sentence and non-parole period, but that intention was never reflected in the sentences actually imposed. Simpson J found this was a genuine error and that the applicant was entitled to have the benefit of the finding implemented. The court reduced the non-parole period on the armed robbery count by nine months. The total sentence of eight years was not found to be manifestly excessive, though Simpson J described it as "at the upper end of the range available."

Orders Made

  • Leave to appeal against sentence granted
  • Sentence for robbery armed with an offensive weapon quashed
  • In its place, imprisonment for five years commencing 17 February 2007 and expiring 16 February 2012, with a non-parole period of two years and three months commencing 17 February 2007 and expiring 16 May 2009
  • First date of eligibility for release on parole: 16 May 2009

Key Takeaways

  • Under the Children (Criminal Proceedings) Act 1987, prior offences dealt with in the Children's Court remain admissible on sentencing where no crime-free period of two years has elapsed since those matters were determined.
  • A co-offender's possession of an offensive weapon during a joint robbery can be attributed to the other participant through joint criminal enterprise, aggravating the offence under s 97 of the Crimes Act 1900.
  • Where a sentencing judge expressly finds special circumstances warranting a departure from the statutory non-parole period ratio, that finding must be reflected in the sentences actually imposed; a stated intention that is not implemented in the final figures amounts to a correctable error on appeal.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that a total term of eight years with a six-year non-parole period for two armed liquor store robberies, while heavy, remained within the available sentencing discretion.
  • Discrepancies between an applicant's accounts to probation officers and psychologists may invite scepticism about credibility, but do not necessarily undermine the bulk of subjective material accepted by the sentencing judge.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 14, 15
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346