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Court of Criminal Appeal 4 September 2007

Sua v R

[2007] NSWCCA 271

Theft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING GUILTY PLEA IN LOCAL COURT WHETHER SENTENCE MANIFESTLY EXCESSIVE WHETHER LESSER SENTENCE WARRANTED.

Citation: Sua v R [2007] NSWCCA 271
Court: NSW Court of Criminal Appeal
Date: 4 September 2007
Judges: Santow JA, Hidden J, Howie J

Background

The applicant pleaded guilty in the Local Court to seven charges arising from a series of armed robberies committed in July and August 2005, just weeks after he was released on parole for an earlier armed robbery offence. The charges included five counts of robbery while armed with a dangerous weapon, one count of possessing a loaded firearm so as to endanger life, and one count of possessing a shortened firearm. The robberies involved the use of a loaded, sawn-off shotgun and targeted a mixed business, a pharmacy, and a brothel.

The applicant was committed to the District Court for sentencing, where he maintained his guilty pleas. On 15 December 2006, Acting District Court Judge Viney imposed an effective total sentence of 13 years imprisonment with an overall non-parole period of 10 years. The applicant sought leave to appeal against those sentences.

  • Whether the sentencing judge erred by allowing only a 15% discount for the guilty pleas, rather than the maximum 25%, given that the pleas were entered in the Local Court
  • Whether the imposition of wholly cumulative fixed terms for the first two armed robbery counts was excessive and failed to apply the totality principle correctly
  • Whether the sentence failed to reflect the sentencing judge's own finding of special circumstances (that is, whether the balance of term remaining after the non-parole period was sufficient to support post-release supervision)

Decision

On the discount for guilty pleas, the Court of Criminal Appeal found that, while the pleas were entered in the Local Court, they did not come until more than 11 months after the applicant's arrest and approximately five and a half months after the prosecution brief was served. The sentencing judge had not been specifically referred to this delay by either party, but the Court held that a 15% discount was open on the material before the judge. More significantly, the Court concluded that even if the discount should have been higher, no lesser sentence overall was warranted given the gravity of the offending, the need for both general and specific deterrence, and the applicant's failure to benefit from the leniency extended on his previous appearance before the Court of Criminal Appeal.

On the question of cumulative fixed terms for the first two robbery counts, the Court found no error. The applicant had committed the first robbery only three weeks after release on parole for a previous armed robbery. The offences were separate events, and the imposition of fully cumulative terms for the first two counts was appropriate in the circumstances.

Regarding special circumstances and the statutory ratio between the non-parole period and the total term, the Court accepted that the sentencing judge had found special circumstances in respect of the later offences, but noted that the effect of cumulative sentences meant the overall non-parole period did not reflect a departure from the standard statutory ratio. The Court found no error in this outcome. It held that the finding of special circumstances, when sentences are being made cumulative, may be necessary simply to align the overall non-parole period with the statutory ratio, and that the judge's remarks were consistent with this approach.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A discount for a guilty plea may be reduced below the 25% maximum where pleas were delayed significantly after arrest and service of the brief, even when the pleas were entered in the Local Court
  • In dismissing the appeal, the Court of Criminal Appeal applied section 6(3) of the Criminal Appeal Act 1912, confirming that even where a sentencing error is identified, an appeal will still be dismissed if no lesser sentence is warranted in all the circumstances
  • Committing serious offences shortly after release on parole for similar offending is a factor that weighs heavily against leniency and supports cumulative sentencing
  • Where sentences are made cumulative, a finding of special circumstances in relation to later offences may be required not to reduce the overall non-parole period, but simply to ensure the total sentence structure accords with the statutory ratio
  • The Court emphasised that general and specific deterrence carry significant weight where an offender has previously been shown leniency and has reoffended in a similar manner during a parole period

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(2) (robbery while armed with a dangerous weapon)
- Firearms Act 1996 (NSW), s 62(1)(b) (possess shortened firearm) and s 93G(1)(a)(ii) (possess loaded firearm so as to endanger life)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Johnson v The Queen (2004) 78 ALJR 616
- Mill v The Queen (1988) 166 CLR 59
- R v Sua [2000] NSWCCA 84