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Court of Criminal Appeal 19 June 2007

R v WITCHARD

[2007] NSWCCA 167

Assault & violenceTheft & property
CRIMINAL LAW RESPONDENT OF ABORIGINAL ORIGIN ROBBERY IN COMPANY ASSAULT WITH INTENT TO ROB VICTIMS WAITING AT RAILWAY STATION PRINCIPLES GOVERNING CROWN APPEALS

Citation: R v Witchard [2007] NSWCCA 167
Court: NSW Court of Criminal Appeal
Date: 19 June 2007
Judge(s): McClellan CJ at CL, Hidden J, Rothman J

Background

The respondent, an Aboriginal man aged 18 at the time of the offences, pleaded guilty in the District Court to robbery in company (maximum penalty 20 years) and assault with intent to rob with wounding (maximum penalty 25 years, with a standard non-parole period of 7 years). The offences arose from an early-morning attack on three men waiting at Kingswood railway station, during which the respondent punched multiple victims and struck one repeatedly over the head with a glass bottle, causing two bleeding wounds, while demanding money.

At sentence, the District Court imposed a non-parole period of 18 months with a further parole term of 2 years for each of the two principal offences, to be served concurrently, producing a total effective non-parole period of 18 months. The respondent was on bail at the time of the offences, and had a prior conviction for a violent offence.

The Crown appealed under section 5D of the Criminal Appeal Act 1912, contending that the sentencing judge made several errors, including failing to properly consider the standard non-parole period applicable to the wounding offence, and that the sentences were in any event manifestly inadequate.

  • Whether the sentencing judge erred in failing to apply or properly consider the Henry guideline for robbery offences
  • Whether the sentencing judge erred in his approach to the standard non-parole period for the assault with intent to rob with wounding charge
  • Whether the Fernando principles (governing sentencing of Aboriginal offenders) were engaged and, if so, whether they were correctly applied
  • Whether the sentences imposed were manifestly inadequate
  • The appropriate approach to amelioration of sentences on a Crown appeal, given the respondent's legitimate expectation of release

Decision

The Court of Criminal Appeal found that the sentencing judge had made several errors. The judge had not adequately engaged with the standard non-parole period applicable to the assault with intent to rob with wounding offence, and had failed to properly apply the Henry guideline principles to the robbery. The court also found error in the treatment of the multiple offences, noting that the two offences involved separate victims who were each seriously assaulted and put in fear, which required meaningful accumulation rather than full concurrency.

McClellan CJ at CL assessed that, absent the Crown appeal, the appropriate sentence for the robbery would have been 5 years with a non-parole period of 3 and a half years, and for the assault with intent to rob with wounding a sentence of 7 years with a non-parole period of 5 years. Applying partial concurrency to reflect the close temporal relationship between the offences, the Chief Judge considered an overall term of 9 years with a non-parole period of 6 years would have been warranted at first instance.

Because this was a Crown appeal, the principle that a double punishment is involved required amelioration of the sentences that would otherwise be appropriate. The respondent had expected release on parole in late 2007, and the Court was mindful that overly severe sentences could undermine his rehabilitation. Accordingly, the resentenced terms were substantially lower than what a sentencing court would ordinarily impose. The Fernando principles, while considered, did not operate to override the need for meaningful punishment in circumstances involving serious violence against strangers.

Orders Made

  1. Crown appeal allowed.
  2. Sentences in relation to counts 1 and 2 quashed.
  3. Count 1 (robbery in company): fixed term of 18 months, dating from 31 May 2006.
  4. Count 2 (assault with intent to rob with wounding): non-parole period of 2 years commencing 31 May 2007 and expiring 30 May 2009, with a further term of 2 years expiring 30 May 2011.
  5. Otherwise the appeal dismissed.

Key Takeaways

  • A sentencing court must engage meaningfully with a standard non-parole period when imposing sentence for an offence that carries one; failure to do so constitutes a specific error susceptible to Crown appeal.
  • Where multiple offences involve separate victims who are each seriously harmed, full concurrency of sentences is unlikely to be appropriate, even when the offences occur at approximately the same time and place.
  • On a Crown appeal, the Court of Criminal Appeal is required to reduce sentences below what it would otherwise consider appropriate at first instance, to account for the element of double punishment that resentencing represents.
  • The Fernando principles, which guide the sentencing of Aboriginal offenders by requiring courts to consider disadvantaged backgrounds and social factors, do not automatically reduce sentences for serious violent offences committed against strangers, particularly where the offender was on bail and had prior convictions for violence.
  • A co-offender's sentence does not automatically set the ceiling for a respondent's sentence where the two offenders' culpability is distinguishable, for example because one was on bail or used a weapon.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), ss 58, 61, 97(1), 98, 166

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321
- Everett v The Queen (1994) 181 CLR 295
- Pearce v The Queen (1998) 194 CLR 610
- R v Baker [2000] NSWCCA 85
- R v Fernando [2002] NSWCCA 28
- R v Henry (1999) 46 NSWLR 346
- R v Jerrard (1991) 56 A Crim R 297
- R v Vranic (NSWCCA, 7 May 1991, unreported)
- R v Wall [2002] NSWCCA 42
- R v Way (2004) 60 NSWLR 168