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Court of Criminal Appeal 7 September 2006

REGINA v. WELLS

[2006] NSWCCA 279

Assault & violenceTheft & property
SENTENCING

Citation: Regina v Wells [2006] NSWCCA 279
Court: NSW Court of Criminal Appeal
Date: 7 September 2006
Judge(s): McClellan CJ at CL, James J, Hall J

Background

The respondent pleaded guilty in the District Court to three separate offences: armed robbery at a petrol station on 12 November 2003 (committed with a knife and netting approximately $800), break, enter and steal on 23 August 2004, and use of an offensive weapon to prevent lawful detention on 23 August 2004. The latter two offences arose from the same occasion. He had been in custody since his arrest in August 2004.

In October 2005, the sentencing judge in the District Court imposed terms totalling an effective maximum of three years and three months, all commencing from 23 August 2004 and expiring on 22 November 2007. The sentences for the break, enter and steal and the use of offensive weapon offences ran from August 2005, but were structured so that they did not add any effective custodial time beyond the period already imposed for the armed robbery.

The Crown appealed on the ground that the sentences were manifestly inadequate, arguing that the structure of the sentences in particular meant that two of the three offences went effectively unpunished.

  • Whether the total effective sentence for three distinct offences was manifestly inadequate.
  • Whether the concurrent structure of the sentences was a principled exercise of the sentencing discretion, or constituted an error of principle.
  • Whether the commencement dates of the break, enter and steal and offensive weapon sentences operated to deprive those offences of any real punitive effect beyond the armed robbery sentence.
  • Whether appellate intervention was warranted, having regard to delay in filing the Crown appeal and the respondent's positive conduct in custody.

Decision

The Court of Criminal Appeal found that the structure of the sentences imposed in the District Court contained an error of principle. The way the sentences were timed meant that the punishment for the break, enter and steal offence and the use of offensive weapon offence was effectively absorbed within the armed robbery sentence. The respondent would not serve any additional time in custody as a result of those two offences, despite each carrying a substantial maximum penalty (14 years and 12 years respectively).

Hall J, with whom McClellan CJ at CL and James J agreed, held that the concurrent structure gave inadequate recognition to the objective criminality of the second and third offences. The principle that separate offences of distinct criminality ordinarily warrant some cumulation was not properly applied. The error lay not simply in the quantum of each individual sentence, but in the overall architecture that allowed two offences to carry no real penal consequence.

The Court acknowledged the respondent's positive behaviour in custody and the delay between sentence and the filing of the appeal as factors relevant to the extent of any intervention. Weighing those matters, the Court found that it was not appropriate to increase the quantum of the armed robbery or break, enter and steal sentences themselves. However, the structural error justified re-sentencing to ensure the offensive weapon offence carried genuine additional time.

The revised structure required the break, enter and steal sentence to commence after the armed robbery non-parole period expired, and the offensive weapon sentence to begin on the date the armed robbery parole commenced, so that each offence contributed real custodial or parole time. The earliest parole eligibility date shifted from 22 October 2006 to 22 April 2007.

Orders Made

  • The sentences for all three offences imposed in the District Court on 10 October 2005 were quashed.
  • For armed robbery: non-parole period of one year and eight months commencing 23 August 2004, expiring 22 April 2006; parole period of two years and four months commencing 23 April 2006, expiring 22 August 2008.
  • For break, enter and steal: fixed term of one year and two months commencing 23 August 2005, expiring 22 October 2006.
  • For use of offensive weapon to prevent lawful detention: fixed term of one year commencing 23 April 2006, expiring 22 April 2007.
  • The earliest date of eligibility for release on parole was fixed at 22 April 2007.

Key Takeaways

  • Where concurrent sentences are structured so that their commencement and expiry dates fall entirely within a pre-existing term, those sentences carry no genuine punitive weight, and this can constitute an error of principle justifying appellate intervention even if each individual sentence is not grossly inadequate in isolation.
  • The objective criminality of each distinct offence must be adequately reflected in the overall sentencing structure, not merely in the nominal term imposed for that offence.
  • Delay in prosecuting a Crown appeal, and evidence of rehabilitation during custody, are relevant to the extent of appellate intervention but do not automatically preclude re-sentencing where a structural error is identified.
  • In re-sentencing, the Court of Criminal Appeal may decline to increase the quantum of individual sentences while still correcting a structural error that deprived certain offences of any real penal consequence.
  • Separate offences committed on different occasions, with distinct victims or circumstances, ordinarily warrant some degree of cumulation to ensure the totality of criminal conduct is properly addressed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1)(a), 97(1), 112(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases Cited
- R v Henry (1999) 106 A Crim R 149
- R v Sweetman [2000] NSWCCA 228
- R v Valenti (1989) 46 A Crim R 23
- R v Tawake [1999] NSWCCA 147
- R v Bell (CCA, unreported, 29 September 1997)
- R v Doorey [2000] NSWCCA 456
- R v Jack Sua [2000] NSWCCA 94
- R v RLS [2000] NSWCCA 175
- R v Whyte (2002) NSWLR 252
- AB v The Queen (1999) 198 CLR 111
- Pearce v The Queen (1998) 194 CLR 610
- Johnson v The Queen [2004] 78 ALJR 616
- R v Ponfield [1999] NSWCCA 422
- R v Hathaway [2005] NSWCCA 368
- R v Bushara [2006] NSWCCA 8
- R v Hamilton (1993) 66 A Crim R 575
- R v Bazzi [1999] NSWCCA 346
- R v Cotter [2003] NSWCCA 273
- R v Janceski [2005] NSWCCA 288
- R v Weldon & Carberry (2002) 136 A Crim R 55
- R v Wall [2002] NSWCCA 42
- Attorney-General v Tichy (1982) 30 SASR 84
- R v Hernando (2002) 136 A Crim R 451