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Court of Criminal Appeal 30 October 2008

R v Pace

[2008] NSWCCA 233

Assault & violenceTheft & propertyFirearms & weapons
SENTENCE CROWN APPEAL PRINCIPLES OF RESTRAINT

Citation: R v Pace [2008] NSWCCA 233
Court: New South Wales Court of Criminal Appeal
Date: 30 October 2008
Judge(s): Bell JA, Latham J, Fullerton J

Background

The respondent pleaded guilty in the District Court to four counts of robbery and attempted robbery under s 94 of the Crimes Act 1900 (NSW). The offences involved entering convenience stores and restaurants in Sydney's eastern suburbs, sometimes wearing a stocking over his head, and demanding cash from staff while making threats to kill. One attempt was foiled when a proprietor struck the respondent with a metal bar. The offences spanned a period from August to September 2007.

The respondent was 27 years old at the time of sentencing and suffered from schizophrenic disorder. His offending occurred during a period when he was homeless, had lost access to his medication, and had been consuming alcohol. Several offences were committed while he was subject to existing good behaviour bonds and, for three of the four counts, while on bail for the first offence.

District Court Judge Goldring sentenced the respondent to an aggregate term of three years and one month, with an effective non-parole period of 13 months. The Crown appealed, contending the sentences were manifestly inadequate.

  • Whether the sentences imposed by the District Court were manifestly inadequate so as to warrant intervention on Crown appeal
  • Whether his Honour erred in failing to differentiate between the objective seriousness of the individual offences
  • Whether the structure of the sentences, including their commencement dates, was within the proper exercise of judicial discretion
  • Whether the specification of a non-parole period representing only 36 per cent of the overall sentence involved impermissible "double dipping" by giving excessive weight to the respondent's psychiatric condition twice over

Decision

The Court of Criminal Appeal dismissed the Crown's appeal. Applying the well-established principle that Crown appeals are subject to significant restraint, the Court found that the Crown had not demonstrated error in the District Court's approach sufficient to justify intervention.

On the question of manifest inadequacy, the Court accepted that the sentences were lenient. However, leniency alone does not establish error on a Crown appeal. The causal relationship between the respondent's schizophrenic disorder and his offending was not in dispute, and this provided a legitimate basis for the sentencing judge to impose sentences at the lower end of the range.

The Court rejected the complaint that his Honour had failed to differentiate between the offences by objective seriousness. It acknowledged that the judge could have imposed longer sentences for the completed offences, or for those committed while on bail. However, the absence of such differentiation did not amount to error in the exercise of a wide sentencing discretion in the particular circumstances of this case.

On the non-parole period, the Court dismissed the "double dipping" argument. It held that, given the respondent's psychiatric illness was directly relevant to his offending and that he was now amenable to treatment, the decision to specify a non-parole period at 36 per cent of the total sentence was within discretion. The principle of restraint governing Crown appeals made it inappropriate to interfere.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court confirmed that Crown sentence appeals attract significant principles of restraint: leniency, without more, does not establish appealable error.
  • A clear causal connection between a respondent's psychiatric illness and their offending is a legitimate and weighty consideration in mitigation, capable of supporting sentences at the lower end of the available range.
  • Where a sentencing judge's failure to differentiate between offences of varying seriousness reflects the exercise of a wide discretion rather than an error of principle, an appellate court will not intervene merely because a different approach was available.
  • Specifying a non-parole period well below the statutory proportion does not constitute impermissible "double dipping" simply because the same psychiatric condition was also considered in arriving at the head sentence, particularly where treatment prospects support an extended supervised release period.
  • Under the principles governing Crown appeals, the existence of multiple available sentencing approaches is not itself a ground for appellate interference.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 94 (robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 10A and 44(2) (special circumstances and non-parole periods)
- Mental Health (Criminal Procedure) Act 1990 (NSW)

Cases
- Everett v R (1994) 181 CLR 295
- Griffiths v The Queen (1997) 137 CLR 239
- Markarian v R [2005] HCA 25; 228 CLR 357
- R v Engert (1995) 84 A Crim R 67
- R v Hemsley [2004] NSWCCA 288
- R v Matthews [2004] NSWCCA 112; (2004) 145 A Crim R 445
- R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383