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Court of Criminal Appeal 3 December 2007

R v Craig John DREW

[2007] NSWCCA 331

Assault & violenceTheft & property
CRIMINAL LAW TOTALITY PRINCIPLE APPEAL DISMISSED

Citation: R v Craig John Drew [2007] NSWCCA 331
Court: New South Wales Court of Criminal Appeal
Date: 3 December 2007
Judge(s): Mason P, Hidden J, Harrison J

Background

The respondent was convicted after two separate jury trials on five counts of robbery whilst armed with an offensive weapon (a knife), committed over a period of six days in June 2005. The victims were all bus drivers. One count also involved wounding, after the respondent stabbed a driver in the forearm during an attempted robbery, causing permanent nerve damage requiring microsurgery. The offences were tried separately, resulting in sentences imposed by two different District Court judges on 8 and 12 December 2006.

The Crown appealed to the Court of Criminal Appeal under s 5D of the Criminal Appeal Act 1912, arguing that the total sentence was inadequate. The effective sentence across all five counts was 8 years imprisonment, with a non-parole period of 5 years and 6 months. The Crown contended that the degree of concurrence and accumulation of sentences failed to reflect the true seriousness of the offending.

The respondent's subjective circumstances were described by the Court as relatively unusual. He had no relevant criminal history until the age of 34, developed a serious narcotic addiction in his late twenties to early thirties that underpinned the offending, and had suffered from depression since his teens. The amounts stolen across the robberies were modest.

  • Whether the overall sentence of 8 years imprisonment with a non-parole period of 5 years and 6 months was manifestly inadequate for five armed robbery offences committed over six days
  • Whether the degree of concurrence between the individual sentences failed to adequately reflect the seriousness of each discrete offence
  • Whether the sentencing discretion of either District Court judge had miscarried, warranting appellate intervention

Decision

Harrison J, with whom Mason P and Hidden J agreed, found that no error had been established in the exercise of the sentencing discretion by either judge. Assessed against the classical sentencing criteria of punishment, deterrence, retribution, and rehabilitation, and having regard to the principles of concurrence, accumulation, and totality, the total sentence was not inevitably characterised as erroneously lenient in the particular circumstances of this offender.

The Court acknowledged the seriousness of the offences and accepted that heavier sentences might well have been justified. However, the Court noted that it is insufficient to establish appellate error simply by pointing to a scope for differences of informed opinion among experienced sentencing judges. The sentences imposed, whether considered individually or in combination, were described as an unexceptional and careful exercise of the sentencing discretion.

The respondent's subjective case was a significant consideration. The late onset of his criminal history, his drug addiction as the clear driver of the offending, his longstanding and difficult-to-treat depression, and the relatively small amounts stolen were all factors the sentencing judges were entitled to weigh. Harrison J stated that even setting aside the additional restraints that ordinarily apply to Crown appeals, the sentences would not have been regarded as manifestly inadequate.

Orders Made

  • Crown appeal dismissed

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that the mere existence of scope for a heavier sentence does not establish that a sentencing discretion has miscarried; manifest inadequacy requires more than a difference of informed opinion.
  • The totality principle requires courts to assess whether the combined effect of concurrent and accumulated sentences appropriately reflects the overall criminality, particularly where multiple similar offences are committed within a short timeframe.
  • Unusual subjective features, including a late onset of criminal history, established drug addiction as the cause of offending, and longstanding mental health conditions, can legitimately moderate the overall sentence even for serious and repeated violent offending.
  • Where two separate sentencing judges have each conducted careful, thorough, and transparent sentencing exercises, the Court of Criminal Appeal will be slow to interfere with either the individual sentences or the combined total.
  • Robbery whilst armed with an offensive weapon under s 97 of the Crimes Act 1900 carries a maximum of 20 years imprisonment; robbery with an offensive weapon with wounding under s 98 carries a maximum of 25 years and a standard non-parole period of 7 years.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97, 98
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- R v Basha [2003] NSWCCA 36; (2003) 138 A Crim R 245
- R v Cotter [2003] NSWCCA 273
- R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Jones [2004] NSWCCA 432
- R v KM [2004] NSWCCA 65
- R v Swadling [2004] NSWCCA 421
- R v Tortell and Tsegay [2007] NSWCCA 313
- R v Wall [2002] NSWCCA 42
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v Webster [2005] NSWCCA 110
- R v Wheeler [2000] NSWCCA 34