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48
Court of Criminal Appeal 15 November 2007

R v Thomas

[2007] NSWCCA 269

Assault & violenceTheft & property
CRIMINAL LAW CROWN APPEAL SENTENCING MISAPPLICATION OF GUIDELINE JUDGMENT AGGRAVATED ROBBERY DISCOUNT FOR PLEA

Citation: R v Thomas [2007] NSWCCA 269
Court: NSW Court of Criminal Appeal
Date: 15 November 2007
Judges: Basten JA, Latham J, Rothman J

Background

The respondent, a young man, pleaded guilty to two offences of aggravated robbery committed in March and April 2005. The first involved robbery with wounding under s 96 of the Crimes Act 1900 (NSW), carrying a maximum of 25 years imprisonment, after the respondent and another person attacked a man outside a public phone booth in Parramatta, causing serious injuries including a fractured nose and a laceration to the head. The respondent had taken a leadership role in initiating both the approach and the violence.

The second offence was robbery in company. At sentencing in the District Court, Nicholson DCJ imposed sentences that the Crown submitted were manifestly inadequate, having improperly applied the guideline judgment in R v Henry (1999) 46 NSWLR 346.

The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW), seeking resentencing. The respondent opposed the appeal, pointing to his youth, rehabilitation, and lack of relevant prior criminal history.

  • Whether the sentences imposed by the District Court were manifestly inadequate
  • Whether Nicholson DCJ misapplied the guideline judgment in R v Henry by applying an additional 15% discount for plea of guilty in circumstances where that guideline already incorporated a 10% plea discount at the lower end of the range
  • Whether a finding of special circumstances (justifying a longer than standard balance of term relative to the non-parole period) was open on the facts
  • Whether the Court of Criminal Appeal should intervene and resentence, and if so, at what level

Decision

The Court of Criminal Appeal allowed the appeal, holding that the sentences imposed below were manifestly inadequate. The sentencing judge had apparently used 4 years as a starting point, which represents the bottom of the range in R v Henry, but then applied a further 15% discount for the plea of guilty. Because R v Henry already builds in a 10% discount for plea at the lower end of its range, applying an additional 15% discount produced a result that fell below the available sentencing range. The Court noted some uncertainty as to whether this was a clear-cut error in principle, but was satisfied the end result was below range in any event.

The Court accepted that the respondent's youth, ongoing rehabilitation, and lack of relevant criminal history were genuine mitigating factors, and that these warranted significant weight. However, those factors could not justify sentences that fell outside the range altogether. The Court noted the respondent's initial dishonesty with police and his maintenance of a false account during sentence proceedings, which limited the weight available for remorse, notwithstanding the sentencing judge's finding to the contrary.

On resentencing, the Court applied a 15% discount for the plea on the first count (representing 5% above the discount already built into the R v Henry lower range), upheld the finding of special circumstances, and constructed the overall sentence to avoid disrupting the respondent's demonstrated rehabilitation. The revised sentences involved partially concurrent non-parole periods and balance of terms, producing a total effective sentence longer than that imposed below but structured to reflect all mitigating features.

Orders Made

  • The Crown appeal was allowed and the sentences imposed by Nicholson DCJ on 30 March 2007 were set aside.
  • For the robbery with wounding (2 March 2005): non-parole period of 2 years commencing 30 March 2007, expiring 29 March 2009; balance of term of 2 years commencing 30 March 2009, terminating 29 March 2011.
  • For the robbery in company (12 April 2005): non-parole period of 2 years commencing 30 March 2008, terminating 29 March 2010; balance of term of 2 years commencing 30 March 2010, terminating 29 March 2012.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the guideline judgment in R v Henry already incorporates a 10% discount for a plea of guilty at the lower end of the sentencing range for aggravated robbery; applying a further full discount on top of that starting point risks producing a sentence below the available range.
  • A sentencing court's findings on youth, rehabilitation, and lack of criminal history attract significant appellate deference, but those factors cannot by themselves justify a sentence that falls outside the permissible range.
  • Remorse must be assessed in context: the respondent's initial false account to police and continued denial of aspects of the offending during the sentencing proceedings were relevant to the weight accorded to any expression of remorse.
  • A finding of special circumstances, justifying a longer than standard balance of term relative to the non-parole period, remained available on resentencing where the evidence supported ongoing rehabilitation needs.
  • In Crown appeals resulting in resentencing, the Court of Criminal Appeal will impose a sentence at the lowest end of the available range, and will take into account any evidence of rehabilitation that has emerged since the original sentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 95, 96
- Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- R v Henry (1999) 46 NSWLR 346
- Wong v The Queen (2001) 207 CLR 584
- Dinsdale v The Queen (2000) 202 CLR 321
- Johnson v The Queen (2004) 78 ALJR 616
- R v Prasad (2004) 147 A Crim R 385
- R v Slack [2004] NSWCCA 128
- R v Tran [2004] NSWCCA 6
- R v Wall [2002] NSWCCA 42
- Regina v Cox [2004] NSWCCA 413