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Court of Criminal Appeal 3 August 2007

R v THOMPSON

[2007] NSWCCA 233

Assault & violenceFraud & dishonestyTheft & propertyFirearms & weapons

Citation: R v Thompson [2007] NSWCCA 233
Court: NSW Court of Criminal Appeal
Date: 3 August 2007
Judge(s): Handley AJA, Hulme J, Hall J

Background

The respondent was convicted by a jury in the District Court of robbery with wounding and car-jacking, following an armed robbery at a Caltex service station in Coonabarabran in June 2005. During the robbery, committed with an accomplice, a knife was used to threaten a service station employee and approximately $569 was taken. After being arrested and charged, the respondent escaped custody, assaulted and resisted police, and attempted to steal a car before being re-apprehended.

The respondent had a significant personal history, including an Aboriginal background, extensive time in juvenile detention from around age 11, substance addiction from early adolescence, and a diagnosis of bipolar affective disorder. The sentencing judge in the District Court took these matters into account and imposed an effective sentence of five and a half years, with a non-parole period of three years.

The Crown appealed, arguing that the sentence for robbery with wounding was manifestly inadequate. The appeal was confined to that single offence, which carries a maximum penalty of 25 years' imprisonment under section 96 of the Crimes Act.

  • Whether the sentencing judge misapplied the guideline judgment in Regina v Henry (1999) 46 NSWLR 346 when sentencing for the robbery with wounding offence
  • Whether, as a consequence, the sentencing judge also erred in applying the principle of totality
  • Whether the sentencing judge gave excessive weight to the respondent's bipolar disorder as a mitigating factor
  • Whether the sentencing judge gave insufficient weight to the seriously aggravating circumstance that the respondent was on three bonds at the time of the offences

Decision

The Court of Criminal Appeal allowed the Crown appeal and substituted a more substantial sentence for the robbery with wounding offence. While Hall J noted that the sentencing judge had accurately identified the relevant facts and correctly identified the applicable statutory and guideline framework, the Court found that inadequate weight had been given to several significant factors.

Those factors included the degree of planning involved in the offence, the respondent's significant criminal history, the fact the offence was committed in company, and that the respondent was convicted after a jury trial rather than having pleaded guilty. The Court also found that undue weight had been placed on the bipolar disorder diagnosis and insufficient weight on the respondent being subject to three bonds at the time.

In accordance with the well-established principle that a sentence substituted on a successful Crown appeal should generally be less than what the sentencing court ought to have imposed, the Court set the substituted sentence toward the lower end of the available range. Hall J specifically referenced the Henry guideline range of four to five years and the principle confirmed in Dinsdale v The Queen (2000) 202 CLR 321 that substituted sentences conventionally sit at the lower end of available options.

Orders Made

  • Crown appeal allowed
  • Sentences for all offences other than robbery with wounding confirmed
  • Sentence for robbery with wounding quashed
  • Respondent re-sentenced for robbery with wounding to a non-parole period of 4 years and 3 months and a total term of 6 years, both commencing 10 June 2006
  • Eligibility for parole recorded as 10 September 2010

Key Takeaways

  • A Crown appeal against sentence for inadequacy does not require the identification of a specific error of principle or law; inadequate weight given to particular sentencing factors can suffice to warrant appellate intervention.
  • Where a Crown appeal succeeds, the Court of Criminal Appeal will impose a substituted sentence located toward the lower end of the available range, applying the principle confirmed in Dinsdale v The Queen.
  • The Henry guideline judgment remains a central reference point when sentencing for robbery offences; aggravating features such as planning, offending in company, a significant criminal history, and an extant bond can justify a sentence above the guideline's base range.
  • Mitigating factors such as mental illness and substance addiction are relevant but cannot be weighted so heavily as to produce a sentence that fails to reflect the objective gravity of the offence and the applicable aggravating circumstances.
  • Conviction after a jury trial, rather than by guilty plea, is a factor properly taken into account in the sentencing calculus.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 96 (robbery with wounding), s 154C (car-jacking)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A, s 54B (standard non-parole periods)
- Criminal Procedure Act 1986 (NSW), s 166 (certificates for related offences)

Cases:
- Regina v Henry (1999) 46 NSWLR 346 (guideline judgment on robbery sentencing)
- Dinsdale v The Queen (2000) 202 CLR 321 (principle on substituted sentences in Crown appeals)
- Regina v Wall [2002] NSWCCA 42 (Crown appeal sentencing principle)