Citation: R v Smith [2007] NSWCCA 100
Court: NSW Court of Criminal Appeal
Date: 12 April 2007
Judge(s): Simpson J (primary judgment), Howie J, Hislop J (both agreeing)
Background
The respondent pleaded guilty in the District Court to six counts of robbery-related offences committed over a six-week period in late 2005. The offences included one count of assault with intent to rob whilst in company and five counts of robbery in company, each carrying a maximum penalty of 20 years' imprisonment under s 97(1) of the Crimes Act 1900. Four additional offences were listed on a Form 1 to be taken into account on sentence.
The offending involved a series of nighttime robberies of convenience stores and service stations in western Sydney, committed with co-offenders and, in four instances, involving gratuitous violence against staff who had not resisted. Five of the six offences were committed while the respondent was on bail for the first offence.
The District Court sentenced the respondent to six fully concurrent terms, producing an effective non-parole period of two years and one month and a total head sentence of three years and nine months. The Crown appealed on the ground that the sentences were manifestly inadequate.
Legal Issues
- Whether the sentences imposed were manifestly inadequate so as to warrant appellate intervention
- Whether the sentencing judge fell into identifiable error, and if so, whether that error produced sentences outside the range legitimately available
- Whether ordering all six sentences to be served concurrently was appropriate given the sequential, escalating nature of the offending
- How the principles applicable to resentencing after a successful Crown appeal should be applied, including considerations of youth and the short duration of the offending
- How to structure fixed terms for counts where any notional parole period would be subsumed by later, accumulating sentences
Decision
The Court of Criminal Appeal found that the sentences were manifestly inadequate. Simpson J identified four discrete errors in the sentencing process, including the complete concurrency of all six sentences. Ordering all terms to run concurrently had the practical effect of treating the later offences as if they carried no additional punishment, which the Court held was wrong in principle for sequential offending of this kind.
The Court confirmed that a successful Crown appeal does not automatically result in resentencing. The respondent must demonstrate, through the well-known principles governing Crown appeals, why the Court should exercise its discretion to dismiss the appeal even after error is established. No such basis existed here, and the Court proceeded to resentence.
In crafting the new sentences, the Court gave weight to the respondent's youth and the relatively short six-week period over which the offending occurred. These factors justified sentences at the lower end of an adequate range, but could not justify the level of concurrency imposed below. The Court also applied the principle that each successive offence in a series of sequential offending warrants incrementally greater punishment, at least partially achieved through accumulation.
For five of the six counts, the Court imposed fixed terms, finding that specifying a non-parole period for those counts would serve no useful purpose because any parole component would be subsumed within later accumulating sentences. A non-parole period was specified only for the final count, producing an overall head sentence of five and a half years and a total non-parole period of three years and nine months.
Orders Made
- Appeal allowed; all sentences imposed by the District Court quashed
- Count 1 (taking into account Form 1 offences): fixed term of 2 years and 9 months, commencing 8 December 2005, expiring 7 September 2008
- Counts 2 and 3: fixed term of 3 years, commencing 8 March 2006, expiring 7 March 2009
- Counts 4 and 5: fixed term of 3 years and 3 months, commencing 8 June 2006, expiring 7 September 2009
- Count 6: non-parole period of 3 years and 3 months commencing 8 June 2006 (expiring 7 September 2009), with a balance of term of 1 year and 9 months (expiring 7 June 2011)
- Earliest eligible release date: 7 September 2009
Key Takeaways
- Ordering all sentences to run fully concurrently across six sequential robbery offences was held to produce sentences outside the range legitimately available, effectively neutralising punishment for the later offences and failing to address personal deterrence for repeat offending.
- A Crown appeal requires more than establishing patent error: the sentences must also be shown to be manifestly inadequate. Once that threshold is met, the onus shifts to the respondent to show why the Court should nonetheless exercise its discretion to dismiss.
- Where sequential offending occurs, some degree of accumulation is generally required so that later offences do not become, in effect, cost-free repetitions of earlier ones.
- Fixed terms are appropriate for individual counts within a series where any notional parole period would be entirely absorbed by later, accumulated sentences, rendering a specified non-parole period for those counts without practical utility.
- Mitigating factors such as youth and the concentrated timeframe of offending can justify sentences toward the lower end of an adequate range, but cannot justify a sentencing structure that, in total, falls below that range.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 3
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Rail Safety (General) Regulation 2003 (NSW)
Cases:
- Everett v The Queen [1994] HCA 49; 181 CLR 295
- Griffith v The Queen [1977] HCA 44; 137 CLR 293
- R v Drollett [2002] NSWCCA 13
- R v Engert (1995) 84 A Crim R 67
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (the Henry guideline judgment)
- R v Speeding [2001] NSWCCA 105; 121 A Crim R 426
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Wall [2002] NSWCCA 42