Citation: Vos v Regina [2006] NSWCCA 234
Court: NSW Court of Criminal Appeal
Date: 3 August 2006
Judge(s): Spigelman CJ, Hoeben J, Rothman J
Background
The applicant was sentenced in the District Court on 7 October 2005 following an incident at Potts Point on 13 March 2005. He grabbed a 55-year-old man's wrist to steal his wallet, struggled with him, and then produced a small knife and lunged at the victim before walking away. Ten minutes later, he grabbed an 80-year-old man's jacket at Kings Cross and stole his prescription reading glasses.
The District Court convicted the applicant on two counts: assault with intent to rob (maximum 14 years), and possession of an offensive weapon with intent to prevent lawful apprehension (maximum 12 years). The glasses theft was placed on a Form 1 (a procedure by which additional offences are acknowledged at sentencing and taken into account without attracting a separate penalty). The applicant had an extensive criminal record, a history of heroin and alcohol addiction, and was on a suspended sentence at the time of the offences.
Judge Donovan QC imposed identical concurrent sentences on both counts: a non-parole period of 3 years and a balance of term of 3 years. He subsequently filed a report under section 11 of the Criminal Appeal Act indicating he believed the sentences were too long and that he may have made errors in his approach.
Legal Issues
- Whether the sentencing judge correctly applied the principles governing the sentencing of multiple offences, as required by Pearce v The Queen (1998) 194 CLR 610
- Whether the Form 1 matter was properly taken into account
- Whether the individual sentences were manifestly excessive
- Whether the total effective sentence was manifestly excessive
Decision
The Court of Criminal Appeal found that the sentencing judge had erred by imposing identical sentences on two offences carrying different maximum penalties. Under Pearce v The Queen, where an offender is sentenced for multiple offences, each sentence must be crafted to reflect the seriousness of that particular offence. Imposing identical terms across offences with different statutory maxima, without explanation, indicates this principle was not followed.
The Court also found that the Form 1 offence had not been properly treated. Once a matter is placed on a Form 1, it must be taken into account in the sentence for the primary offence; it cannot simply be noted after sentences have been formulated and then notionally incorporated without any adjustment to those sentences. The record suggested the judge was reminded of the Form 1 only after passing sentence and then advised he had already considered it, raising doubt about whether the Form 1 was genuinely factored into the sentencing exercise.
Although the Court did not find the total effective sentence manifestly excessive, it accepted that each individual sentence, considered separately, was likely outside the appropriate range. Working backwards from the sentences imposed and applying a 25 per cent discount for the early guilty plea, the implied starting point for each offence was approximately 8 years, which the Court regarded as too high given the nature of the offending.
Because of these identified errors, the Court re-sentenced the applicant. The two new sentences were structured to be partially concurrent and partially cumulative, producing a total non-parole period of 2 years and 6 months with a parole period of 2 years.
Orders Made
- Leave to appeal granted and appeal allowed
- Sentences passed by Judge Donovan QC on 7 October 2005 quashed
- For assault with intent to rob (s 94 Crimes Act 1900): non-parole period of 2 years commencing 13 March 2005 and expiring 12 March 2007, balance of term of 2 years expiring 12 March 2009
- For possession of an offensive weapon with intent to prevent lawful apprehension (s 33B Crimes Act 1900): non-parole period of 2 years commencing 13 September 2005 and expiring 12 September 2007, balance of term of 2 years expiring 12 September 2009 (partially concurrent and partially cumulative on the first sentence)
Key Takeaways
- The Court of Criminal Appeal confirmed that Pearce v The Queen requires each sentence in a multiple-offence case to be individually calibrated to reflect the seriousness of that specific offence, particularly where the relevant maximum penalties differ.
- Imposing identical sentences across offences with different statutory maximum penalties, without reasoned justification, is a strong indicator that the Pearce principle has not been applied correctly.
- Proper treatment of a Form 1 matter requires that the additional offending be genuinely factored into the formulation of the primary sentence, not merely noted after the sentences have already been set.
- A sentence judge's own post-sentencing report under section 11 of the Criminal Appeal Act, acknowledging possible error, formed part of the basis on which the appeal court proceeded to re-sentence.
- In re-sentencing, the Court structured the two sentences as partially concurrent and partially cumulative rather than wholly concurrent, reflecting the distinct nature of each offence while avoiding a disproportionate total term.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 11
- Crimes Act 1900 (NSW), ss 33B, 94
Cases
- Pearce v The Queen (1998) 194 CLR 610
- Veen v The Queen (No 2) (1988) 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
- R v Sloane [2001] NSWCCA 421
- R v Zamagias [2002] NSWCCA 17