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Court of Criminal Appeal 12 October 2006

Regina v Olive

[2006] NSWCCA 329

Assault & violenceTheft & propertyPublic order & justice offences

Citation: Regina v Olive [2006] NSWCCA 329
Court: Court of Criminal Appeal, New South Wales
Date: 12 October 2006
Judge(s): Tobias JA, Grove J, Bell J

Background

The applicant pleaded guilty in the District Court to assault with intent to rob while armed with an offensive weapon, contrary to section 97(1) of the Crimes Act 1900, which carries a maximum sentence of 20 years imprisonment. The offence involved entering a video store, threatening the female owner with a syringe and claiming to have HIV, leaping over the counter, and physically grabbing her hands while demanding she open the till. The applicant fled when the victim's husband approached, and was later identified through fingerprints and CCTV footage.

The applicant was sentenced by Rein DCJ in the District Court to two years and three months imprisonment, with a non-parole period of 15 months and a balance of 12 months. He sought leave to appeal to the Court of Criminal Appeal, contending the sentence was manifestly excessive and raising three additional grounds relating to the conduct of the sentencing proceedings.

  • Whether the sentence was manifestly excessive, having regard to the applicable guideline judgment and the applicant's subjective circumstances, including his drug addiction
  • Whether the sentencing proceedings miscarried because a flawed pre-sentence report could not be tendered, and whether the sentencing judge should have ordered a fresh report or heard evidence from the report's author
  • Whether the sentencing judge erred in his treatment of the applicant's criminal history
  • Whether the sentencing judge failed to give adequate weight to the applicant's drug rehabilitation and prospects of rehabilitation

Decision

The Court rejected the argument that the sentencing judge miscarried by not obtaining a fresh pre-sentence report. Drawing on R v Majors (1991), Bell J confirmed that it is essentially a matter for the sentencing judge to decide whether to defer sentencing for a pre-sentence report. The Court noted that the approach agreed between the parties gave the applicant the benefit of favourable conclusions in the report while avoiding the contentious and unreliable material it contained. No error was established in the judge's handling of this issue.

The Court found no merit in the ground relating to the applicant's criminal history. Although prior offences were recorded, the sentencing judge's approach to that material was appropriate and no appellable error was demonstrated.

On the principal ground of manifest excess, the Court found the sentence was well within the available range. The sentencing judge had applied the relevant guideline judgment (in R v Henry), concluding the offence fell within a range of four to five years before discounts. His Honour then applied a 25 percent discount for the early guilty plea, reducing the starting point of three years to two years and three months. The Court noted this discount was generous given the guideline already assumed a plea of guilty. The finding of special circumstances, which altered the statutory ratio between the non-parole period and the balance of sentence, represented a further leniency extended to the applicant.

Bell J, with whom Tobias JA and Grove J agreed, held that the overall sentence could not be characterised as falling outside the range of sound sentencing discretion. All four grounds of appeal failed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge retains a broad discretion in deciding whether to obtain or replace a pre-sentence report, and is not obliged to do so on the motion of either party or sua sponte (of the judge's own accord).
  • Where a pre-sentence report contains unreliable hearsay and is not tendered, a sentencing judge commits no error by proceeding without it, particularly where both parties have agreed on what favourable material the report disclosed.
  • A 25 percent discount for an early guilty plea was described as generous in the context of the Henry guideline, which already assumes a plea of guilty rather than a contested hearing.
  • Under the R v Osenkowski principle, a sentencing court is not required to treat a matter as a "cross-roads" case simply because an offender has a history of drug addiction; the absence of frank disorder of thought processes at the time of the offence is a relevant distinguishing consideration.
  • No error was established in the District Court's treatment of the applicant's drug addiction as relevant to prospects of rehabilitation rather than as a mitigating factor that reduced the objective seriousness of the offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g)

Cases:
- R v Majors (1991) 27 NSWLR 624
- R v Morgan (1993) 70 A Crim R 368
- R v Osenkowski (1982) 30 SASR 212
- R v Palu (2002) 134 A Crim R 174
- R v Rawson [2001] NSWCCA 399
- R v Zahab [2002] NSWCCA 430