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Court of Criminal Appeal 18 May 2006

Sternbeck v Regina

[2006] NSWCCA 132

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL WHETHER SENTENCES MANIFESTLY EXCESSIVE

Citation: Sternbeck v Regina [2006] NSWCCA 132
Court: NSW Court of Criminal Appeal
Date: 18 May 2006
Judge(s): Hodgson JA, James J, Hoeben J

Background

The appellant was sentenced in the District Court on 19 April 2005 by Coolahan DCJ following convictions for two counts of armed robbery. The first count, armed robbery with an offensive weapon causing grievous bodily harm under s 98 of the Crimes Act 1900 (maximum 25 years), involved a violent attack on a young woman working alone at a liquor store, during which the appellant tied her up, repeatedly assaulted her, and caused three fractures to her facial bones requiring surgical repair. The second count, armed robbery with an offensive weapon under s 97 of the Crimes Act 1900 (maximum 20 years), involved a robbery at a video store where the appellant threatened a staff member and ordered a mother and her seven-year-old son to lie on the floor. Additional offences of aggravated robbery were taken into account on a Form 1 in relation to each count.

The sentencing judge imposed a sentence of nine years (six years non-parole) for count 1, commencing 16 March 2004, and a sentence of six and a half years (three years non-parole) for count 2, commencing 16 September 2008. The combined effect was a total non-parole period of seven and a half years and an overall head sentence of just under eleven years.

The appellant sought leave to appeal, arguing not that any individual sentence was excessive, but that the overall accumulated sentences breached the totality principle.

  • Whether the accumulated sentences were manifestly excessive when viewed in their totality
  • Whether the sentencing judge's approach to accumulation and concurrency fell outside a proper exercise of sentencing discretion
  • Whether the principle of totality required the overall sentence to be reduced even where individual sentences were not challenged

Decision

Hoeben J (with whom Hodgson JA and James J agreed) dismissed the appeal. The central observation was that the appellant had not challenged any individual sentence. This significantly constrained the totality argument: if the undiscounted head sentences for counts 1 and 2 stood unchallenged at 12 years and 8 years 8 months respectively, it was difficult to characterise a combined undiscounted figure of slightly under 15 years as manifestly excessive.

The Court noted that the sentencing judge had conducted a full review of both the facts and the relevant law. The offences were objectively very serious. The violence in count 1 went beyond what was necessary to make out the elements of the offence. The Form 1 matters accompanying that count were themselves serious, and the Court confirmed that those matters required greater weight to be given to personal deterrence and to the community's entitlement to punishment for offences that attracted no specific individual sentence.

The sentencing judge had also considered the appellant's use of crystal methamphetamine, which was linked to his violent episodes, and the evidence of the psychologist Mr Ashcar. His Honour concluded that the subjective considerations did not substantially reduce the objective seriousness of the offences and that the appellant's rehabilitation prospects were limited. The Court of Criminal Appeal found no error in that assessment.

The Court of Criminal Appeal is a court of error: it may intervene only where error in the exercise of sentencing discretion is demonstrated. No such error was established here, and the accumulated sentences properly reflected the objective gravity of the offending and the relevant personal circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A challenge to overall accumulated sentences on totality grounds faces significant difficulty where the appellant does not also challenge the individual sentences from which the accumulation is derived.
  • The Court of Criminal Appeal confirmed its role as a court of error: absent a demonstrated error in the exercise of sentencing discretion, the appellate court has no power to intervene.
  • Where Form 1 offences are taken into account at sentencing, the sentencing court must give greater weight to personal deterrence and community retribution, because no separate punishment is imposed for those offences.
  • In dismissing the appeal, the Court accepted that the period of criminality was brief but that the objective seriousness of the individual offences, including violence exceeding the elements of the charge and multiple victims across several incidents, justified the level of accumulation imposed.
  • An appellant's awareness that a drug of addiction causes them to act violently does not automatically constitute significant mitigation; the sentencing court retains a discretion to find that subjective factors do not substantially reduce objective seriousness.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 95, 97, 98

Cases
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- R v Way (2004) 16 NSWLR 168