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Court of Criminal Appeal 29 January 2007

Tilyard v Regina

[2007] NSWCCA 7

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE ROBBERY WITH A DANGEROUS WEAPON RELEVANCE OF ALCOHOL ADDICTION WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Tilyard v Regina [2007] NSWCCA 7
Court: NSW Court of Criminal Appeal
Date: 29 January 2007
Judge(s): Adams J, Howie J, Price J

Background

The applicant, a man in his mid-fifties with a prior history of armed robbery, was convicted by a jury of robbery with a dangerous weapon under s 97(2) of the Crimes Act 1900. The offence involved entering a Liverpool chemist shop armed with a loaded revolver and demanding money. The applicant took approximately thirty dollars from the counter before leaving; he was arrested shortly afterwards with the weapon still on his person.

The applicant's defence at trial was that he had no memory of committing the offence. He had a significant history of alcohol dependency and alcohol-related brain damage, including documented cognitive impairment affecting memory, judgement, and decision-making. Medical evidence indicated he had been discharged from hospital on the very day of the offence, having been admitted a week earlier in a confused and intoxicated state.

In the District Court, Hughes DCJ sentenced the applicant to a total term of six years, comprising a non-parole period of four and a half years and an additional term of one and a half years. The applicant sought leave to appeal on two grounds: that the sentence was manifestly excessive given his alcohol addiction and related impairments, and that the judge erred in declining to find special circumstances warranting an extended additional term.

  • Whether the sentence of six years (non-parole period of four and a half years) was manifestly excessive, having regard to the applicant's alcohol addiction, cognitive impairment, and the circumstances of the offence.
  • Whether the sentencing judge erred in failing to find special circumstances that would justify reducing the non-parole period relative to the overall sentence.

Decision

On the manifest excess ground, the Court of Criminal Appeal noted that robbery with a dangerous weapon carries a maximum of 25 years imprisonment. Applying the principles in R v Henry and R v Israil, the Court found the sentence was well within the appropriate range for a mid-level armed robbery. While acknowledging the applicant's alcohol dependency and documented brain damage, the Court held those matters did not reduce the objective seriousness of the offence to a degree that rendered the sentence excessive. The Court also noted the applicant's prior convictions for similar offending, which weighed against the mitigatory significance of his condition.

On the special circumstances ground, the Court examined the sentencing judge's reasoning and found it was open to him to conclude that the applicant's rehabilitation prospects were poor. The psychiatric and psychological reports before the sentencing judge said nothing specific about the likelihood of rehabilitation succeeding, particularly in light of the applicant's brain damage and long history of failed attempts to address his alcohol dependency. The Court noted that the applicant had previously served a lengthy parole period following his earlier armed robbery convictions, yet had re-offended in a similar fashion shortly after that parole expired.

The Court confirmed that a finding of special circumstances is a question of fact for the sentencing judge, and an appellate court will only intervene if the finding was not reasonably open on the material available. No error was established here.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentence for armed robbery with a dangerous weapon will not be manifestly excessive merely because the offender has a significant history of alcohol addiction and associated cognitive impairment, particularly where the objective seriousness of the offence remains at mid-level or above.
  • Alcohol dependency and alcohol-related brain damage are relevant mitigating factors at sentencing, but their weight is affected by the nature and seriousness of the offence and the offender's prior criminal history.
  • Under the principles governing special circumstances, the sentencing court is entitled to decline a finding where the evidence does not affirmatively establish that an extended parole period would benefit the offender's rehabilitation prospects.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that findings on special circumstances are factual determinations within the sentencing judge's discretion, not to be disturbed unless plainly unreasonable on the available material.
  • A prior pattern of similar offending, including a previous lengthy parole period that did not prevent reoffending, is a legitimate consideration in assessing both sentence length and special circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(2) (robbery with a dangerous weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing)

Cases:
- R v Henry (1999) 46 NSWLR 346
- R v Israil [2002] NSWCCA 255