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Court of Criminal Appeal 15 November 2007

R v Tortell, R v Tsegay

[2007] NSWCCA 313

Assault & violenceTheft & property
CRIMINAL LAW SENTENCES ALREADY COMMENCED APPEAL DISMISSED

Citation: R v Tortell, R v Tsegay [2007] NSWCCA 313
Court: New South Wales Court of Criminal Appeal
Date: 15 November 2007
Judge(s): McClellan CJ at CL, Adams J, Harrison J

Background

Two respondents pleaded guilty in the District Court to aggravated robbery under s 95 of the Crimes Act 1900, with a further offence of knowingly being carried in a stolen conveyance taken into account. The offence involved a planned daylight robbery of a private mail contractor who was transporting over $51,000 in cash and cheques to a bank. One respondent physically confronted the victim while the other seized the bag during the resulting struggle, and both fled in a stolen car.

The robbery had been planned several days in advance, involved the use of a stolen vehicle, and was enabled by intelligence obtained through contacts employed by one of the victim's clients. The District Court judge sentenced both respondents to community service orders rather than any form of custodial sentence, placing significant weight on their strong subjective circumstances, including youth, mental health, cultural vulnerability, and the early progress of their rehabilitation.

The Crown appealed under s 5D of the Criminal Appeal Act 1912, arguing the sentences were manifestly inadequate and that a custodial sentence was required for an offence of this nature.

  • Whether the sentencing judge erred in assessing the objective seriousness of the aggravated robbery, particularly in relation to the element of corporal violence
  • Whether a non-custodial sentence was appropriate for a planned aggravated robbery
  • Whether, even if error was established, the Court of Criminal Appeal should exercise its residual discretion not to intervene, having regard to the double jeopardy principle

Decision

McClellan CJ at CL found that the sentencing judge had erred. His Honour considered it unrealistic to treat the corporal violence as minimal simply because it was triggered by the victim's resistance. The possibility of a violent struggle was an entirely foreseeable consequence of confronting a person to steal from them, and the respondents' culpability was not diminished by the fact that the victim fought back. In his Honour's view, the offence required at minimum a periodic detention sentence, and the community service orders were manifestly inadequate.

Despite this finding of error, the Court dismissed the appeal by exercising the residual discretion available in Crown appeal matters. By the time the appeal was heard, both respondents had already commenced their community service sentences. They had been released from any prospect of custody, had begun to re-establish themselves in the community, and had made genuine rehabilitation progress. The uncertainty and distress of the appeal proceedings themselves were also relevant.

Harrison J, with whom the Court ultimately agreed on the outcome, applied the principle that Crown sentence appeals should succeed only in rare and exceptional circumstances, and that the residual discretion assumes particular importance where the sentencing court's orders have already allowed an offender to resume community life. The Crown's own characterisation of the original sentence as "borderline" appellable error was also noted.

The appeal was dismissed unanimously, though a majority acknowledged the sentence was manifestly inadequate as a matter of principle.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A conviction for aggravated robbery under s 95 of the Crimes Act 1900 carries a maximum of 20 years imprisonment, and the Court of Criminal Appeal confirmed that custodial sentences will be appropriate in all but exceptional cases where robbery is committed in circumstances of aggravation.
  • The sentencing court's reasoning that corporal violence was minimal because it was initiated by the victim's resistance was held to constitute error: offenders who commit robbery must be taken to have foreseen the prospect of a physical struggle, and the victim's response does not reduce their culpability.
  • In Crown sentence appeals, the Court retains a residual discretion to decline interference even where error is established. That discretion is engaged particularly where the offender has been permitted to remain in the community and has already commenced serving a non-custodial sentence.
  • The double jeopardy principle applies with particular force where the effect of a sentencing order has been to release an offender and allow rehabilitation to commence before an appeal is heard.
  • Strong subjective circumstances, including youth, mental health conditions, cultural vulnerability, and the absence of any prior custodial history, were treated as weighty factors in the overall sentencing exercise, even though they did not prevent the Court from finding the sentence inadequate in principle.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 94, 95, 154A(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Dinsdale v The Queen (2000) 202 CLR 321
- Everett v The Queen (1994) 181 CLR 295
- R v Baker [2000] NSWCCA 85
- R v Burns [2007] NSWCCA 228
- R v Geddes (1936) 36 SR (NSW) 554
- R v Hemsley [2004] NSWCCA 228
- R v Henry (1999) 46 NSWLR 346
- R v Hernando (2002) 136 A Crim R 451
- R v Hicks (1987) 45 SASR 270
- R v Holder [1983] 3 NSWLR 245
- R v Horne [1999] NSWCCA 391
- R v Kyroglou [1999] NSWCCA 106
- R v Wall [2002] NSWCCA 42