Citation: Matthew Scott Olsen v Regina [2006] NSWCCA 88
Court: NSW Court of Criminal Appeal
Date: 29 March 2006
Judge(s): McClellan CJ at CL, Sully J, Hislop J
Background
The applicant pleaded guilty in the District Court at Campbelltown to two counts of armed robbery, each committed at the same pharmacy in Liverpool over consecutive days in May 2003. A third armed robbery of the same premises, carried out on the day between those two offences, was taken into account as an additional matter on sentencing. All three robberies were committed with a co-offender, with both men wielding large kitchen knives and demanding cash and drugs from staff.
Judge Sorby sentenced the applicant to concurrent terms of four years' imprisonment on each count, with a non-parole period of 20 months. The judge applied a 25 per cent discount for an early guilty plea and a 30 per cent discount for substantial cooperation with authorities, including agreement to give evidence against the co-offender.
The applicant, who appeared in person, sought leave to appeal against sentence on two grounds: first, that the sentence was disproportionately harsh compared with the sentence received by his co-offender; and second, that 165 days spent in rehabilitation programmes before sentencing should have been deducted from his sentence in a precise arithmetical way.
Legal Issues
- Whether the sentence imposed on the applicant was disproportionate when compared with the sentence imposed on his co-offender (the parity ground)
- Whether 165 days spent in pre-sentence rehabilitation programmes constituted a form of custody entitling the applicant to a direct arithmetical reduction in his sentence
Decision
On the parity ground, the Court accepted that any arithmetic comparison between the two sentences was complicated by the co-offender's different circumstances. The co-offender received six years with a three-year non-parole period, having pleaded guilty partway through trial and receiving no discount for cooperation. He also had worse criminal antecedents, including a prior armed robbery, and was on parole at the time of the offences. The Court found that once the applicant's 55 per cent total discount was properly understood, the two outcomes were not impermissibly different and no error was established.
On the "quasi custody" ground, Sully J held that time spent in rehabilitation programmes does not constitute pre-sentence custody in the strict sense and cannot be deducted arithmetically from a sentence. The correct approach is to take rehabilitation efforts into account in a broadly inclusive way when fixing the non-parole period. The Court found that Judge Sorby had done exactly that.
Despite dismissing the appeal, Sully J observed that the applicant's sentence was, if anything, undeservedly lenient in two respects. First, his Honour took the view that the three offences were discrete and separately conceived, and ought not to have been treated as a single episode warranting wholly concurrent sentences. Some accumulation would, in Sully J's view, have been appropriate. Second, the structure of the sentences meant that the additional offence taken into account on Count 1 attracted no real additional penalty, conferring what his Honour described as an undeserved windfall on the applicant.
Orders Made
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- Time spent in pre-sentence rehabilitation programmes does not constitute custody in the legal sense and does not entitle an offender to a direct arithmetical reduction in sentence; rather, rehabilitation efforts are taken into account in a broadly inclusive way, particularly when fixing the non-parole period.
- In dismissing the parity ground, the Court of Criminal Appeal confirmed that bare arithmetic comparison of sentences is of limited utility; the appropriate exercise is a broader comparison of overall outcomes, taking into account the different subjective circumstances of each co-offender.
- Where a co-offender received no discount for plea or cooperation, a sentencing comparison with an offender who received a combined 55 per cent discount requires careful unpacking before any parity argument can be sustained.
- Concurrent sentences for separately conceived and executed offences may, in some circumstances, be found to understate the true criminality involved; Sully J expressly noted that some accumulation would have been appropriate for three distinct armed robberies committed on three consecutive days.
- Under the guideline judgment in Reg v Henry & ors, armed robbery offences fitting the typical profile attract an indicative sentencing range of four to five years' imprisonment; the guideline is not prescriptive but provides a useful point of reference for sentencing courts.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (armed robbery while armed with an offensive weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32 (taking additional offences into account)
Cases:
- Reg v Henry & ors (1999) 46 NSWLR 346 (guideline judgment on armed robbery sentencing)