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48
Court of Criminal Appeal 22 September 2006

Regina v CAGE

[2006] NSWCCA 304

Assault & violenceTheft & property
SENTENCE CROWN APPEAL

Citation: Regina v CAGE [2006] NSWCCA 304
Court: NSW Court of Criminal Appeal
Date: 22 September 2006
Judge(s): Hunt AJA, Johnson J, Latham J

Background

The respondent pleaded guilty in the District Court at Gosford to three offences arising from a single evening of violence in Killarney Vale in July 2005: demanding money with menaces (maximum 10 years), demanding money with menaces in company (maximum 14 years), and common assault (maximum 2 years). Two further offences (a common assault and malicious damage) were taken into account on Form Ones. The offences arose from a series of confrontations following a party dispersed by police, during which the respondent threatened victims with a knife he claimed to have, physically assaulted one victim, and, with associates, caused approximately $3,500 in damage to a motor vehicle.

The original charges had been aggravated assault with intent to rob, which were strictly indictable. The charges ultimately prosecuted were initially "backup charges" capable of being dealt with summarily, and were presented on indictment following plea negotiations. The sentencing judge imposed an aggregate sentence of two years with an aggregate non-parole period of 15 months. The Director of Public Prosecutions appealed on the ground that the sentences were manifestly inadequate.

  • Whether the sentencing judge erred by failing to assess the objective gravity of the offences before passing sentence
  • Whether the sentencing judge placed undue emphasis on the theoretical availability of summary disposition when determining the appropriate sentence
  • Whether the sentences imposed were manifestly inadequate such that the Court of Criminal Appeal should intervene and re-sentence the respondent

Decision

Latham J (with whom Hunt AJA and Johnson J agreed) found that the sentencing judge had committed two identifiable errors. Although the judge recited the facts of the offences, at no point did he assess their objective gravity. His Honour's remarks moved directly from the facts to subjective considerations and mitigating factors, without any evaluation of where the offences fell on the spectrum of seriousness for offences of their type.

The second error was an undue emphasis on the fact that the offences were technically capable of summary disposition. The Court found that this consideration had distorted the sentencing exercise. The circumstance that charges could have been dealt with in a Local Court does not, without more, justify a sentence significantly below what the objective circumstances of the offending otherwise warrant.

The Court acknowledged the restraint applicable to Crown appeals and accepted that any sentence imposed on appeal would be at the lower end of the available range and less than what should have been imposed at first instance. Taking into account the respondent's circumstances in custody, his completion of a relapse prevention course, his drug addiction, and the fact that this was his first significant adult custodial sentence, the Court found special circumstances and re-sentenced him to an aggregate term of three years with an aggregate non-parole period of two years.

Orders Made

  • Appeal allowed
  • Sentences imposed by Nield DCJ on 17 May 2006 quashed
  • Count 1 (demand money with menaces, with Form One offence taken into account): non-parole period of 1 year from 15 August 2005, expiring 14 August 2006; balance of term of 1 year, expiring 14 August 2007
  • Count 2 (demand money with menaces in company, with Form One offence taken into account): non-parole period of 18 months from 15 February 2006, expiring 14 August 2007; balance of term of 12 months, expiring 14 August 2008
  • Count 3 (common assault): fixed term of 7 months from 15 June 2006, expiring 14 January 2007
  • Respondent eligible for release at expiration of the non-parole period on Count 2

Key Takeaways

  • A sentencing court must expressly assess the objective gravity of the offences before proceeding to subjective and mitigating factors; reciting the facts without that assessment constitutes an error of principle.
  • The theoretical availability of summary disposition is not, of itself, a sound basis for significantly moderating a sentence imposed on indictment; placing undue weight on that factor distorts the sentencing exercise.
  • In allowing a Crown appeal and re-sentencing, the Court of Criminal Appeal applied the established principle that the sentence imposed on appeal will be at the lower end of the available range and less than what should have been imposed at first instance.
  • Special circumstances justifying a longer balance of term than the statutory ratio were found where the offender was serving his first significant adult custodial sentence and required structured supervision to address drug dependency and reduce the risk of reoffending.
  • Completing rehabilitation courses in custody and demonstrating an intention to engage with drug treatment upon release were treated as relevant to the respondent's prospects, though these factors did not displace the need for a materially higher sentence than that originally imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including s 95 (aggravated assault with intent to rob)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 21A (aggravating and mitigating factors)

Cases:
- R v Rushby [1977] 1 NSWLR 594
- R v Gordon (1994) 71 A Crim R 459
- Markarian v The Queen [2005] HCA 25
- R v Ranse (NSWCCA, unreported, 8 August 1994)
- R v Gent [2005] NSWCCA 370
- R v Crombie [1999] NSWCCA 297
- R v El Masri [2005] NSWCCA 167
- Wise v R [2006] NSWCCA 264
- R v Wall [2002] NSWCCA 42