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Court of Criminal Appeal 19 February 2008

VEALE v R

[2008] NSWCCA 23

Also reported as 181 A Crim R 149
Assault & violenceTheft & property

Citation: Veale v R [2008] NSWCCA 23
Court: NSW Court of Criminal Appeal
Date: 19 February 2008
Judges: Giles JA, Hulme J, Hislop J

Background

The appellant was convicted of robbery whilst armed with an offensive weapon, a piece of PVC tubing. He had followed a victim, who was carrying $20,000 in cash in a bag destined for the bank, into a car park in a stolen vehicle while wearing a balaclava. He grabbed her bag and fled. The trial judge found the offence involved a considerable degree of planning.

The appellant had a troubled background, including a mother who died by suicide when he was 15, a period living on the streets of Kings Cross, and a long history of addiction to heroin and amphetamines. His prior criminal record included six incidents of armed robbery or similar offences, six vehicle-related matters, and eleven other dishonesty offences.

The District Court sentenced the appellant to 10 years imprisonment with a non-parole period of 7 years and 6 months. He sought leave to appeal, raising multiple grounds of error in the sentencing process.

  • Whether the sentencing judge erred by treating the appellant's prior criminal record as an aggravating factor of the offence itself under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge erred in applying only a lower-end discount for the plea of guilty
  • Whether the victim was correctly characterised as "vulnerable" under s 21A(2)(l) of the Act
  • Whether the sentencing judge failed to account for the appellant's medical condition and placement in protective custody
  • Whether special circumstances existed justifying a variation to the standard non-parole period ratio
  • Whether the overall sentence was manifestly excessive

Decision

The Court upheld the ground that the sentencing judge had misapplied s 21A(2) by treating the appellant's prior criminal record as an aggravating factor of the offence. Established Court of Criminal Appeal authority, and the terms of s 21A(4) itself, make clear that a prior record does not aggravate the offence. While a prior record is plainly relevant to the overall sentencing exercise, the judge's remarks showed he had not approached the matter as the law required.

On the plea discount, the Court found no error. The appellant pleaded guilty only on the eve of trial after the Crown substituted a lesser charge following negotiations. The Court confirmed that even where a plea is entered at the earliest opportunity on the charge as ultimately put, a sentencing judge may recognise that the utilitarian value to the justice system is limited where the plea comes at a late stage overall.

The Court was not persuaded that the finding of victim vulnerability was wrong. Although the victim was not unusually vulnerable in a personal sense, she was carrying a large sum of cash, rendering her particularly susceptible to the type of harm the offence actually caused. The grounds relating to the appellant's medical condition, protective custody placement, and special circumstances were considered and accepted as supporting a reduced sentence.

Taking the totality of errors and mitigating factors into account, the Court found the original sentence was excessive and resentenced the appellant. The commencing date, which had been agreed upon during plea negotiations and had the effect of running the robbery sentence concurrently with earlier sentences, was left undisturbed despite the Crown not seeking to rely on that point.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Maguire DCJ on 10 November 2006 for robbery with an offensive weapon quashed
  • Appellant resentenced to a non-parole period of 6 years commencing 5 August 2004, with a further term of 2 years commencing 5 August 2010

Key Takeaways

  • Under s 21A(4) of the Crimes (Sentencing Procedure) Act 1999, a prior criminal record does not aggravate the offence itself, even though it remains relevant to the overall sentencing exercise. Treating it as an aggravating factor under s 21A(2) constitutes an error of law.
  • The Court of Criminal Appeal confirmed that the utilitarian value of a guilty plea may be assessed as low even when a plea is entered at the first available opportunity, if that opportunity arises only at a late stage of proceedings following charge substitution.
  • Victim vulnerability under s 21A(2)(l) is not limited to personal frailty. A victim carrying a large sum of cash may be found vulnerable to the particular type of harm inflicted by the offence.
  • Where a commencing date for a sentence was agreed upon as part of plea negotiations, an appellate court may decline to disturb that component even where the agreed date has the practical effect of absorbing earlier sentences into a concurrent term.
  • Certificates of course completion obtained by an appellant while in custody are relevant material that an appellate court may receive and take into account on resentencing.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(l), 21A(4)

Cases:
- R v Wickham [2004] NSWCCA 193
- R v Walker [2005] NSWCCA 109
- R v Dib [2003] NSWCCA 117
- R v Scott [2003] NSWCCA 286
- R v Sy [2003] NSWCCA 291
- R v Harmouche [2005] NSWCCA 298