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Court of Criminal Appeal 27 July 2007

R v Wilson-Winship

[2007] NSWCCA 163

Also reported as (2007) 172 A Crim R 505
Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL CROWN APPEAL ARMED ROBBERY OF BANK NON APPLICABILITY OF R V HENRY GUIDELINE

Citation: R v Wilson-Winship [2007] NSWCCA 163
Court: NSW Court of Criminal Appeal
Date: 27 July 2007
Judge(s): James J, Rothman J, Harrison J

Background

The respondent pleaded guilty in the District Court to robbery armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900 (NSW), which carries a maximum of 20 years' imprisonment. The offence involved the respondent using a sledgehammer to smash the front doors of a Commonwealth Bank branch in Surry Hills at 8:30am before the branch opened, then stealing just over $60,500 in cash from a trolley being moved by staff. Staff members were threatened and placed in fear during the robbery.

Williams DCJ sentenced the respondent to a non-parole period of two years and three months, with a remainder of one year and six months, commencing 26 February 2006. At the time of sentence, the respondent was already serving a prison term for earlier offences.

The Crown appealed, contending that the sentence was manifestly inadequate and affected by identifiable errors in the sentencing judge's reasoning.

  • Whether the sentencing judge erroneously applied the R v Henry guideline judgment (which addresses armed robbery of persons in the street) to a bank robbery, where that guideline does not apply
  • Whether the sentencing judge double-counted the guilty plea discount by first reducing the sentence to reflect the plea and then applying a further percentage discount for the same plea
  • Whether the resulting sentence was manifestly inadequate for an armed bank robbery of this kind
  • Whether the Court of Criminal Appeal should exercise its residual discretion to intervene, given the double jeopardy faced by the respondent on a Crown appeal

Decision

The Court granted the Crown appeal, finding two clear errors in the sentencing below. First, the sentencing judge applied the R v Henry guideline, which governs street robberies committed by offenders with criminal histories. The Court confirmed that this guideline has no application to bank robberies, and applying it here produced a starting point that was lower than was appropriate for the objective seriousness of the offence.

Second, the sentencing judge double-counted the discount for the guilty plea. Having already reduced the sentence to account for the plea when arriving at a head sentence, his Honour then applied a further percentage discount for the same plea. The Court found this was a clear error of principle: a sentencing judge cannot take the same factor into account twice to reduce a sentence.

The Court acknowledged the respondent's genuine steps toward rehabilitation, his particular personal circumstances, and the weight typically given to those matters in structuring a sentence on a Crown appeal. Consistent with the principle that sentences imposed on successful Crown appeals should sit at the lower end of the available range, the Court assessed a head sentence of eight years before discount, then applied a 25 per cent discount for the plea to arrive at a total sentence of six years.

To reflect the respondent's ongoing rehabilitation and to provide an extended period of supervised liberty, the Court structured the sentence with a non-parole period of three years and a parole period of three years. This gave the respondent the opportunity to continue rehabilitation both in custody and on parole.

Orders Made

  • The Crown's appeal against the sentence imposed by Williams DCJ on 15 December 2006 was granted.
  • The sentence imposed on the respondent for robbery armed with an offensive weapon (committed 29 September 2005) was quashed.
  • The respondent was resentenced to a non-parole period of 3 years' imprisonment commencing 26 February 2006 and expiring 25 February 2009, with a remainder of sentence of 3 years expiring 25 February 2012.

Key Takeaways

  • The R v Henry guideline judgment applies specifically to street robberies and does not govern the sentencing of bank robbery offences; applying it in a bank robbery context constitutes an error of principle.
  • Double-counting a mitigating factor, such as a guilty plea, by reducing the head sentence for it and then applying a further percentage discount for the same factor is an identifiable error that may ground a successful Crown appeal.
  • A sentence resulting from a successful Crown appeal must, in accordance with established principle, sit at the lower end of the available range, reflecting the double jeopardy the offender faces.
  • In exercising the residual discretion on a Crown appeal, the Court of Criminal Appeal took account of the respondent's genuine rehabilitation and structured the sentence to maximise supervised liberty on parole.
  • Crown appeals against sentence remain rare and are entertained only where error (latent or patent) is demonstrated or the sentence falls clearly outside the appropriate range; the Court retains a live discretion to decline intervention even where error is shown.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- R v Henry (1999) 46 NSWLR 346
- R v Thomson and Houlton (2000) 49 NSWLR 383
- Dinsdale v The Queen (2000) 202 CLR 321
- Veen v R (No 2) (1988) 164 CLR 465
- R v Wall [2002] NSWCCA 42
- R v Prasad (2004) 147 A Crim R 385
- R v Abboud [2005] NSWCCA 251
- R v AA [2006] NSWCCA 55
- R v O'Donoghue (1988) 34 A Crim R 397