Citation: Sharpe v R [2006] NSWCCA 255
Court: NSW Court of Criminal Appeal
Date: 23 August 2006
Judge(s): McClellan CJ at CL, Johnson J, Latham J
Background
The appellant was convicted in the Sydney District Court, following a jury trial, of two offences arising from a break-and-enter at a Harvey Norman warehouse in Kelso in January 2002. The first offence was aggravated break, enter and steal in company. The second was aggravated use of an offensive weapon to prevent lawful apprehension, in company, contrary to s 33B(2) of the Crimes Act 1900.
The second offence arose when a uniformed security officer, driving a marked vehicle, confronted the appellant and two co-offenders as they fled the scene. One man threatened the officer with a crowbar, and when the officer fired a warning shot (which missed), the three men raised bars in a threatening manner. The officer suffered no physical injury, but the appellant sustained a gunshot wound to the leg during the incident.
The appellant was sentenced to a total of five years' imprisonment. He appealed against his conviction on the s 33B(2) count and sought leave to appeal against the sentence imposed for that count.
Legal Issues
- Whether the jury's verdict on the s 33B(2) count was supported by the evidence, given that the appellant's identity as one of the men present was not established beyond reasonable doubt
- Whether the sentencing judge erroneously double-counted the use of an offensive weapon as an aggravating factor under s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, when that weapon use was already an element of the offence
- Whether the sentencing judge erroneously took the appellant's prior criminal record into account as an aggravating factor under s 21A(2)(d)
- Whether the sentencing judge failed to make adequate allowance for the appellant's assistance to authorities
- Whether the sentencing judge failed to account for the extra-curial punishment the appellant suffered, namely the gunshot wound to the leg sustained during the offence
Decision
The Court dismissed the conviction appeal. Although identity was contested, the Court found that the jury was entitled to rely on the totality of the evidence, including the security officer's account of events and the circumstances of the appellant's apprehension, to conclude that the verdict was reasonably open. The standard applied was whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, not whether a different conclusion was possible.
On the sentencing appeal, the Court accepted that some of the grounds raised potential concerns, particularly regarding the double-counting issue. Under s 21A of the Crimes (Sentencing Procedure) Act 1999, a feature that is already an element of the offence cannot be separately treated as an aggravating circumstance. The offensive weapon use, being an element of the s 33B(2) offence, should not have been counted again as an aggravating factor.
The Court also considered the question of extra-curial punishment. A gunshot wound sustained during the commission of an offence can, in appropriate circumstances, be a relevant mitigating consideration. However, the Court found that even accepting error in any or all of the grounds raised, the two-year sentence with an 18-month non-parole period remained well within the available range and was not excessive given the seriousness of the offence and the offender's circumstances.
The Court confirmed that general deterrence plays a significant role in sentencing for s 33B offences, and that the serious approach courts have taken to such offences against police officers extends equally to offences committed against security officers performing lawful duties. Leave to appeal against sentence was granted, but the appeal was dismissed.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence allowed, but the appeal dismissed
Key Takeaways
- A verdict on a count of aggravated use of an offensive weapon to prevent lawful apprehension will stand if, on the evidence as a whole, it was reasonably open to the jury to be satisfied of the accused's guilt beyond reasonable doubt, even where identity was contested.
- Under s 21A of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must not treat a feature that is already an element of the charged offence as a separate aggravating circumstance; doing so constitutes an error in principle.
- A gunshot wound sustained by an offender during the commission of an offence may qualify as extra-curial punishment and is a potentially relevant mitigating factor at sentencing, though its weight depends on all the circumstances.
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that even where sentencing errors are established, a sentence appeal will fail if the imposed sentence remained within the available range and no lesser sentence was warranted.
- The serious sentencing approach applied to s 33B offences committed against police officers extends to offences committed against security officers who are acting in the lawful discharge of their duties, with general deterrence identified as a significant sentencing consideration.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 33B(2), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(c), 21A(2)(d)
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Pearce v The Queen (1998) 194 CLR 610
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Hamilton (1993) 66 A Crim R 575
- R v Barton (2001) 121 A Crim R 185
- R v Perez (NSWCCA, 11 December 1991)
- R v McNaughton [2006] NSWCCA 242
- R v Chahine [2006] NSWCCA 99
- Seymour v R [2006] NSWCCA 206
- Sharwood v R [2006] NSWCCA 157
- R v Qutami (2001) 127 A Crim R 369
- R v Palu (2002) 134 A Crim R 174
- R v Daetz and Wilson (2003) 139 A Crim R 398
- R v Allpass (1993) 72 A Crim R 561