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Court of Criminal Appeal 18 July 2006

Rumble v Regina

[2006] NSWCCA 211

Assault & violenceTheft & property
SENTENCE APPEAL WHETHER SENTENCES MANIFESTLY EXCESSIVE USE OF STATISTICS BROAD DISCRETION OF SENTENCING JUDGE.

Citation: Rumble v Regina [2006] NSWCCA 211
Court: NSW Court of Criminal Appeal
Date: 18 July 2006
Judge(s): Handley JA, Kirby J, Hoeben J

Background

The applicant pleaded guilty in the District Court to three counts of assault with intent to rob and robbery while armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900. The offences occurred over a five-day period in July 2004 and involved the use of a knife and blood-filled syringes to threaten victims at newsagencies, convenience stores, and on the street in inner Sydney. A further three similar offences were placed on a Form 1 (a procedural mechanism by which additional offences are taken into account when sentencing for the principal offences, without separate convictions being recorded).

The sentencing judge imposed concurrent non-parole periods of five years across all three counts, with a head sentence of eight years. A 25 percent discount was applied to reflect early guilty pleas. The applicant sought leave to appeal, contending the sentences were manifestly excessive and that the sentencing judge had misused the Form 1 mechanism.

  • Whether the sentencing judge incorrectly applied the Form 1 offences when sentencing on Count 2
  • Whether the sentences imposed were manifestly excessive, having regard to the nature of the offences and the applicant's subjective circumstances
  • Whether the guideline judgment in R v Henry (concerning armed robbery) applied, and how sentencing statistics should be used
  • Whether the aggregate effect of the sentences offended the principle of totality

Decision

The Court found a clear error in the way the sentencing judge had used the Form 1 offences in relation to Count 2. The Form 1 offences had been taken into account on that count when they should not have been, and because they were themselves serious offences, the error was likely to have materially influenced the sentence imposed. That error justified intervention and resentencing on Count 2.

On the question of manifest excess, the Court applied the well-established principle that an applicant must demonstrate the sentence was "unreasonable or plainly unjust." The Court emphasised that there is no single correct sentence and that the Court of Criminal Appeal may not simply substitute its own view for that of the sentencing judge. Because the three counts involved offences committed on different days, some accumulation of sentences would have been open to the sentencing judge. The decision to run all sentences concurrently was treated as a form of leniency already extended to the applicant. The Court was not persuaded that the overall outcome was manifestly excessive or that it offended totality.

Regarding R v Henry, the Court considered the applicability of that guideline judgment and examined the proper use of sentencing statistics. The Court confirmed that while such materials can inform the sentencing discretion, they do not override it, and judges at first instance are entitled to significant flexibility consistent with principled and consistent sentencing.

Orders Made

  • Leave to appeal granted and the appeal allowed
  • Sentence on Count 1 confirmed
  • Sentence on Count 2 quashed; applicant resentenced to a non-parole period of 4 years and 6 months commencing 24 July 2004 and expiring 23 January 2009, with a balance of term of 2 years and 6 months expiring 23 July 2011
  • Sentence on Count 3 confirmed

Key Takeaways

  • A sentencing judge's incorrect attribution of Form 1 offences to a particular count can constitute clear and material error justifying appellate resentencing, particularly where the Form 1 offences are themselves serious.
  • Establishing manifest excess requires showing the sentence was "unreasonable or plainly unjust," a high threshold that the applicant in this case largely failed to meet.
  • The Court of Criminal Appeal confirmed it cannot substitute its own sentencing preference for that of the sentencing judge merely because it might have reached a different outcome.
  • Sentencing statistics and guideline judgments, including R v Henry on armed robbery, inform the sentencing discretion but do not constrain it to the point of overriding the broad discretion available at first instance.
  • Where a sentencing judge elects to run sentences concurrently despite offending occurring on separate days, that concurrency itself reflects leniency that weighs against a finding of manifest excess on totality grounds.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Criminal Appeal Act 1912 (NSW)

Cases
- R v Henry (1999) 46 NSWLR 346
- Markarian v The Queen [2005] HCA 25
- Dinsdale (2000) 202 CLR 321
- Wong and Leung v The Queen (2001) 207 CLR 584
- R v Simpson (2001) 53 NSWLR 704
- Veen v The Queen (No 2) (1998) 164 CLR 465
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
- Director of Public Prosecutions v Ottewell (1970) AC 642
- R v Blair [2005] NSWCCA 78
- R v Hodge NSWCCA 2 November 1993 (unreported)