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Court of Criminal Appeal 29 June 2007

Regina v Naji

[2007] NSWCCA 198

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING CROWN APPEAL SENTENCE MANIFESTLY INADEQUATE HENRY SENTENCING PRINCIPLES.

Citation: Regina v Naji [2007] NSWCCA 198
Court: NSW Court of Criminal Appeal
Date: 29 June 2007
Judge(s): Spigelman CJ, James J, Hislop J

Background

The respondent pleaded guilty in the District Court to two offences of robbery while armed with an offensive weapon under s 97(1) of the Crimes Act 1900, each carrying a maximum penalty of 20 years imprisonment. The offences occurred within ten minutes of each other in the early hours of 16 March 2006, when the respondent entered two separate convenience stores armed with metal scissors, physically assaulted both victims, and stole approximately $750 in total. He committed the offences while on a conditional liberty order (a bond) and was arrested on 14 April 2006.

In the District Court, Geraghty DCJ imposed a total sentence of two years imprisonment, then suspended it entirely under s 12 of the Crimes (Sentencing Procedure) Act 1999. The sentencing judge was significantly influenced by the respondent's youth, his drug-related background, strong family support, guilty plea, and what appeared to be genuine rehabilitation during pre-sentence custody.

The Crown appealed to the Court of Criminal Appeal, arguing the suspended sentence was manifestly inadequate.

  • Whether the District Court erred by failing to apply or refer to the guideline judgment in R v Henry (1999) 46 NSWLR 346, which set a sentencing range of four to five years for armed robbery offences of this type
  • Whether the District Court erred by failing to give reasons for departing from that guideline
  • Whether the overall sentence, in particular the suspension, was manifestly inadequate given the objective seriousness of the offences
  • What resentencing orders were appropriate, having regard to the respondent's pre-sentence custody, progress on the suspended sentence, and the constraints applicable to Crown appeals

Decision

The Court of Criminal Appeal unanimously allowed the appeal. The respondent's counsel conceded that error had occurred in the sentencing process and that the respondent had been afforded undue leniency. The sentencing judge had neither referred to nor applied the R v Henry guideline judgment, which identified offences of this character as warranting four to five years imprisonment, and had given no reasons for departing from that benchmark.

Hislop J (with whom Spigelman CJ and James J agreed) held that the serious nature of the offences, the involvement of actual violence in the first robbery, and the commission of both offences while the respondent was on conditional liberty mandated a term of full-time imprisonment. The respondent's counsel argued the court should decline to intervene given the apparent rehabilitation to date, but the Court declined to take that approach.

In resentencing, the Court allowed a 25 per cent discount for the early guilty plea, found special circumstances justifying an extended balance of term, and backdated the sentence to 29 June 2006 to account for pre-sentence custody and the period served under the suspended sentence. Because the offences occurred within ten minutes of each other and this was a Crown appeal, the Court imposed concurrent rather than cumulative sentences.

Orders Made

  • Appeal allowed
  • Original sentences quashed
  • First offence: imprisonment with a non-parole period of two years commencing 29 June 2006 and expiring 28 June 2008, and a balance of term of two years commencing 29 June 2008 and expiring 28 June 2010
  • Second offence: identical sentence running concurrently with the first
  • Earliest eligible parole date: 28 June 2008

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing court must apply the R v Henry guideline for armed robbery under s 97 of the Crimes Act, or give reasons for departing from it; failure to do so constitutes error.
  • A suspended sentence for armed robbery involving actual violence, threats to kill, and commission while on conditional liberty was held to be manifestly inadequate, even where strong mitigating factors were present.
  • Evidence of post-arrest rehabilitation, though relevant, does not override the imperative of full-time custody where the objective gravity of the offences is sufficiently serious.
  • In Crown appeals, the Court applied the established constraint of not resentencing more harshly than necessary to correct the error, reflected here in concurrent sentences and backdating to credit pre-sentence custody.
  • Where a sentencing judge imposes a suspended sentence for offences of this character without engaging with the applicable guideline judgment, the Court of Criminal Appeal will treat that omission as a sentencing error warranting intervention.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (armed robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (suspended sentences)

Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for armed robbery)
- R v Whyte (2002) 55 NSWLR 252 (obligation to give reasons for departing from guideline)
- R v Wall [2002] NSWCCA 42 (constraints on Crown appeals)
- R v Pearce (1998) 194 CLR 610
- Regina v Zamagias [2002] NSWCCA 17