Citation: Boakye-Yiadom v Regina [2006] NSWCCA 400
Court: New South Wales Court of Criminal Appeal
Date: 8 December 2006
Judge(s): McClellan CJ at CL, Simpson J, Hall J
Background
The applicant, an 18-year-old at the time of the offence, was convicted after a judge-alone trial in the District Court of robbery in company under s 97(1) of the Crimes Act 1900 (NSW). The offence involved the robbery of a man on a train at Sydenham, during which a knife was produced by one of the applicant's companions and the victim was robbed of his mobile phone and $400 in cash. The offence was committed while the applicant was on bail for a separate stealing offence.
Judge Sorby of the Parramatta District Court sentenced the applicant to a non-parole period of three years commencing 9 March 2005, with an additional term of two years, expiring 8 March 2010. A finding of special circumstances was made, reflecting the applicant's lack of prior custodial sentences and his rehabilitation prospects.
The applicant, unrepresented, sought leave to appeal against the severity of the sentence. His grounds were that the sentence was very harsh and that he was willing to apologise to the victim.
Legal Issues
- Whether the sentence imposed was outside the range appropriate for a robbery in company offence in the relevant circumstances
- Whether the applicant's post-sentence expressions of remorse and willingness to apologise to the victim were relevant to establishing error in the sentencing proceedings
Decision
Hall J, with McClellan CJ at CL and Simpson J agreeing, found no error in the sentencing process. The sentence was consistent with the indicative range established by the guideline judgment in Regina v Henry & Ors (1999) 46 NSWLR 436, noting that the guideline range related to late pleas of guilty. The Court also noted that the guideline applies to robbery in company offences as well as armed robbery, as confirmed in Regina v Murchie (1999) 108 A Crim R 482.
The sentencing judge had carefully considered the relevant mitigating factors, including the applicant's age, limited planning, background of family disruption and homelessness, drug use, and the absence of substantial injury or loss. The aggravating circumstance, namely that the offence was committed on bail, was also properly weighed.
On the question of remorse, the sentencing judge had accepted that the applicant was remorseful at the time of sentencing. The applicant's further expressions of regret during the appeal, both in written submissions and orally, were found to be immaterial. Post-sentence remorse and a willingness to apologise to the victim are not matters relevant to establishing error in the sentencing proceedings.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Post-sentence expressions of remorse and offers to apologise to a victim carry no weight in establishing error in sentencing proceedings before an appellate court.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the guideline judgment in Regina v Henry & Ors applies to robbery in company offences and not only to armed robbery proper.
- A non-parole period of three years for a robbery in company offence by an 18-year-old, committed while on bail and involving a weapon, was held to fall within the appropriate sentencing range.
- Mitigating factors such as youth, background disadvantage, early rehabilitation efforts in custody, and absence of substantial loss to the victim may inform a sentence without necessarily reducing it below guideline ranges where significant aggravating factors are present.
- Appearing unrepresented does not alter the appellate standard: an applicant must still identify a demonstrable error in the sentencing proceedings to succeed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
Cases:
- Regina v Henry & Ors (1999) 46 NSWLR 436 (guideline judgment on robbery sentencing ranges)
- Regina v Murchie (1999) 108 A Crim R 482 (application of guideline to robbery in company)