Citation: Emiliano BUONOCORE v REGINA [2006] NSWCCA 159
Court: NSW Court of Criminal Appeal
Date: 18 May 2006
Judge(s): McClellan CJ at CL, Hall J, Latham J
Background
The applicant was a former casual employee of a pharmacy who orchestrated two armed robberies of its banking runs, both targeting the same National Australia Bank branch in Silverwater in December 2002 and February 2003. He enlisted a co-worker and his girlfriend to provide inside information and coordinated each robbery while acting as the getaway driver. The male assailant on each occasion was a person unknown to pharmacy staff, a deliberate feature of the plan designed to obscure the applicant's involvement.
The applicant pleaded guilty to one count of armed robbery (the December 2002 offence) and consented to the February 2003 robbery being placed on a Form 1 (a procedure by which additional offences are taken into account at sentencing without being separately prosecuted). He had no prior criminal history. Marien DCJ imposed a sentence of 7 years imprisonment with a non-parole period of 4 years and 6 months.
The applicant sought leave to appeal that sentence in the Court of Criminal Appeal, arguing the sentencing judge had not properly credited his rehabilitation prospects, had erred in using the Form 1 offence to increase the sentence for personal deterrence, and that the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge failed to adequately consider evidence of the applicant's prospects of rehabilitation, including a psychologist's report and character references
- Whether the sentencing judge erred in increasing the sentence on grounds of personal deterrence having regard to the Form 1 offence, given that the applicant had no prior criminal history
- Whether the sentence of 7 years with a 4 year 6 month non-parole period was manifestly excessive in all the circumstances
Decision
On the rehabilitation ground, the Court found no error in the sentencing judge's approach. Although Marien DCJ expressed some scepticism about the weight to place on the applicant's expressions of remorse and the psychologist's low-risk assessment, he was not obliged to accept that evidence uncritically. The applicant had denied involvement to police, provided no oral evidence at sentencing, and the psychologist had not been given accurate information about the applicant's role. The sentencing judge was entitled to be cautious.
On the personal deterrence ground, the Court confirmed that a Form 1 offence can be a basis for increasing a sentence for personal deterrence, even where the offender has no prior criminal history. The absence of prior convictions does not exclude personal deterrence as a sentencing consideration. What matters is whether the course of offending itself demonstrates a need to deter the offender from repeating that conduct. Here, two carefully planned, near-identical armed robberies plainly justified that inference.
The Court also rejected the submission that the sentencing judge had misdirected himself by treating the Form 1 offence as calling for a separate additional penalty rather than a general uplift. Read as a whole, the sentencing remarks disclosed no such error. The judge took the Form 1 offence into account in the orthodox manner: as part of the overall picture of criminality informing the appropriate sentence for the principal offence.
On manifest excess, the Court found the sentence was stern but within the sentencing judge's discretion. The principal offence involved significant planning over two weeks, exploitation of inside knowledge from a co-worker, a knife threat, and proceeds exceeding $24,000. These features placed the matter above the narrow starting-point range identified in the guideline judgment of R v Henry. The Form 1 offence was, in virtually every respect, as serious as the principal offence, and the Court confirmed that where a Form 1 offence is that grave, any additional penalty need not be small.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A Form 1 offence can justify an increase in sentence for personal deterrence even where the offender has no prior criminal history, provided the course of offending itself demonstrates a risk of reoffending.
- The Court of Criminal Appeal confirmed that where a Form 1 offence is objectively as serious as the principal offence, it is wrong to suggest the resulting sentencing increase should be small, applying Attorney General's Application No. 1 of 2002.
- Sentencing judges retain discretion to approach subjective evidence of rehabilitation with caution, particularly where the offender gave no oral evidence, denied involvement to police, and the supporting expert had not been given a full account of the offender's role.
- Under the R v Henry guideline for armed robbery, significant planning and substantial proceeds are aggravating factors capable of lifting the starting-point head sentence above the narrow four-to-five-year range identified for cases involving no actual violence.
- No error was established in the sentencing judge's treatment of the Form 1 offence, and the sentence of 7 years with a non-parole period of 4 years 6 months was held to be within the proper exercise of the sentencing discretion.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(1) (armed robbery, maximum 20 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37
Cases
- R v Henry & Ors (1999) 46 NSWLR 346; [1999] NSWCCA 111 (guideline judgment for armed robbery)
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- R v Elfar [2003] NSWCCA 358
- R v Qutami (2001) 127 A Crim R 369
- R v McGourty [2002] NSWCCA 335