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Court of Criminal Appeal 21 December 2007

GRAY v R

[2007] NSWCCA 366

Assault & violenceTheft & property
SENTENCE APPEAL ROBBERY EXCESSIVE USE OF FORCE BUT NO INJURY ACCUMULATION OF SENTENCES UTILITARIAN DISCOUNT

Citation: Gray v R [2007] NSWCCA 366
Court: NSW Court of Criminal Appeal
Date: 21 December 2007
Judge(s): McClellan CJ at CL, Adams J, Harrison J

Background

The appellant pleaded guilty in the Local Court to three serious offences committed between 2003 and 2004: two armed robberies of a Target store at Woy Woy, and an aggravated break-and-enter of a residential dwelling at Wyoming. In each offence, the appellant used physical force against the victim, binding their wrists and threatening them, though none sustained serious physical injury. A fourth offence (breaking, entering and stealing) was placed on a Form 1 to be taken into account at sentence.

In the District Court, Judge Marien sentenced the appellant to a total effective sentence of 20 years' imprisonment, with a non-parole period of 14 years, achieved by accumulating three separate sentences. The appellant sought leave to appeal on the grounds that the sentences were manifestly excessive and that the accumulation failed to adequately reflect the utilitarian discount for his guilty pleas, among other matters.

  • Whether the individual sentences and their accumulation resulted in a total sentence that was manifestly excessive
  • Whether the sentencing judge gave adequate weight to mitigating factors, including the utilitarian discount for guilty pleas
  • Whether the level of physical force used in the robberies, absent serious injury to the victims, had been properly characterised
  • Whether special circumstances existed to justify departing from the statutory non-parole period ratio applicable to the third charge

Decision

Adams J (with whom McClellan CJ at CL and Harrison J agreed) upheld the appeal in part. The sentence on the first charge was confirmed. However, the sentences on the second and third charges were found to be excessive, principally because the accumulated total did not properly reflect the utilitarian discount that had been applied at the individual sentence level.

The Court accepted that the robberies were serious, involving physical restraint and threats with a weapon. However, it emphasised that no physical injury beyond minor harm resulted, and that this was a relevant mitigating factor in assessing the weight of the sentences individually and in aggregate.

The Court addressed the statutory ratio for non-parole periods under the Crimes (Sentencing Procedure) Act 1999, finding that special circumstances existed to justify a reduced non-parole period in respect of the third charge. The relevant circumstances included the appellant's psychological state and the conditions of his imprisonment, which made a longer period on parole than the statutory formula would produce desirable in the public interest.

By restructuring the second and third sentences, the Court reduced the total effective sentence to approximately 11 years and 6 months, with a non-parole period of 7 years, commencing 12 July 2005.

Orders Made

  • Appeal on the first charge dismissed; sentence of four years (fixed term) commencing 12 July 2005 confirmed.
  • Appeal on the second charge allowed; sentence quashed and replaced with a fixed term of three years commencing 12 July 2007 and expiring 11 July 2010.
  • Appeal on the third charge allowed; sentence quashed and replaced with an overall term of five years and six months commencing 12 July 2010 and ending 11 January 2016, with a non-parole period expiring 11 July 2012. The appellant is to be released on parole on 11 July 2012.

Key Takeaways

  • Where individual sentences are accumulated, the sentencing court must ensure the utilitarian discount for guilty pleas is genuinely reflected in the overall sentence, not merely in each component part considered in isolation.
  • Excessive force during robbery remains an aggravating factor, but the absence of physical injury to victims is a relevant mitigating consideration that courts must weigh when assessing the appropriate sentencing range.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 can justify departing from the statutory non-parole period ratio where the conditions of imprisonment and the offender's psychological state make an extended period on parole desirable in the public interest.
  • The Court of Criminal Appeal confirmed it will intervene where accumulated sentences, taken together, are disproportionate to the overall criminality disclosed, even if each individual component is not obviously excessive in isolation.
  • A long criminal record, including prior offending of a similar nature, remains a significant factor in sentencing but does not displace the court's obligation to ensure the total sentence is proportionate and reflects all relevant discounts.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 44

Cases:
- R v Henry (1999) 46 NSWLR 346