AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 6 March 2006

Andrews v Regina

[2006] NSWCCA 42

Also reported as 160 A Crim R 505
Assault & violenceTheft & property
CRIMINAL LAW AND PROCEDURE ROBBERY IN COMPANY SENTENCE RISK OF "DOUBLE COUNTING" HOWEVER LESSER SENTENCE NOT WARRANTED

Citation: Andrews v Regina [2006] NSWCCA 42
Court: NSW Court of Criminal Appeal
Date: 6 March 2006
Judge(s): Giles JA, Grove J, Hoeben J

Background

The appellant pleaded guilty at first opportunity to a single count of robbery in company, contrary to s 97(1) of the Crimes Act 1900. The offence occurred in May 2004 when the appellant and a companion targeted a hotel guest they had observed withdrawing money from an ATM near Sydney's Rocks precinct. The pair followed the victim, physically obstructed him, grabbed him from behind, and one offender threatened the use of a knife. The appellant removed a mobile phone from the victim's pocket during the ensuing struggle, before a passing limousine driver detained him until police arrived.

The appellant had an extensive criminal history, having spent much of the preceding five years in custody for various offences. The sentencing judge in the District Court imposed a total term of six years' imprisonment with a non-parole period of three years.

The appellant sought leave to appeal against the severity of that sentence, relying on two grounds: that the sentencing judge erred in treating actual violence and threatened use of a weapon as aggravating factors, when those features are elements of the offence of robbery; and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by treating actual violence and the threatened use of a weapon as aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999, when those matters are elements of the offence of robbery
  • Whether using s 21A as a checklist is an appropriate sentencing approach
  • Whether the sentence of six years with a three-year non-parole period was manifestly excessive
  • Whether, even if error was established, any lesser sentence was warranted in law

Decision

The Court upheld the first ground of appeal in principle. Section 21A of the Crimes (Sentencing Procedure) Act 1999 provides that a court cannot have "additional regard" to an aggravating factor if it is already an element of the offence. Robbery at common law inherently requires actual or threatened violence, so those features could not properly be treated as separate aggravating factors elevating the sentence. Grove J also noted that treating s 21A as a checklist is not an appropriate approach to sentencing, endorsing a similar observation made in R v Kelly [2005] NSWCCA 280.

The sentencing judge's remarks were found to be inadequate in one respect: they left unarticulated how, and to what extent, those nominated aggravating factors were actually applied in the overall assessment. The failure to explain this created a genuine risk of "double counting," meaning the offender may have been punished more severely for something already factored into the maximum penalty for the offence itself. However, Grove J also noted that the remarks bore the hallmarks of a formal recitation prompted by defence counsel's own use of the checklist approach.

On the second ground, the Court applied the guideline from R v Henry (1999) 46 NSWLR 346, which addressed armed robbery but which the Court accepted as relevant to robbery in company. While the appellant's immediate plea and full admissions to police weighed in his favour, those matters were substantially offset by his significant criminal history and his age as a more experienced offender. The Court found the sentence was not manifestly excessive.

Although the first ground of appeal was technically made out, the Court declined to intervene. Drawing on the principle in R v Simpson (2001) 53 NSWLR 704, the Court emphasised that establishing error in the sentencing process does not automatically warrant intervention: the Court must form a positive opinion that some other, lesser sentence was warranted in law and should have been passed. No such opinion was formed here, and the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Under s 21A of the Crimes (Sentencing Procedure) Act 1999, a sentencing court cannot treat a matter as an aggravating factor if that matter is already an element of the offence charged; applying it otherwise creates a risk of impermissible double counting.
  • Treating s 21A as a sentencing checklist is not an appropriate approach, as confirmed by the Court of Criminal Appeal here and in R v Kelly.
  • A sentencing judge retains the capacity to assess the degree of seriousness with which an elemental feature was present in a particular offence, but the remarks must make clear how that factor was applied in the overall sentencing assessment.
  • Establishing a sentencing error does not automatically lead to a reduction in sentence. Following R v Simpson, the Court of Criminal Appeal must form a positive opinion that a lesser sentence was both warranted in law and should have been passed before it will intervene.
  • In dismissing the appeal, the Court confirmed that an immediate guilty plea and full admissions to police, while mitigating, can be substantially offset by a significant criminal history when assessing the overall appropriateness of a sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A, s 6(3)

Cases
- R v Henry (1999) 46 NSWLR 346
- R v Kelly [2005] NSWCCA 280
- R v Murchie [1999] NSWCCA 424
- R v Simpson (2001) 53 NSWLR 704
- R v Way [2004] NSWLR 168
- Smith v Desmond [1965] AC 960