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Court of Criminal Appeal 30 June 2009

Cavanagh v R

[2009] NSWCCA 174

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL ARMED ROBBERY ON PAROLE

Citation: Cavanagh v R [2009] NSWCCA 174
Court: New South Wales Court of Criminal Appeal
Date: 30 June 2009
Judge(s): McClellan CJ at CL; Grove J; Buddin J

Background

The appellant pleaded guilty in the District Court to four counts of armed robbery and one count of assault with intent to rob whilst in company. He also had twelve further offences taken into account on two Form 1s, including five additional armed robberies. All offences were committed between July and August 2006, each targeting retail staff, and most involved a knife.

Critically, the appellant was on parole at the time, having been sentenced in 2002 to eight years imprisonment (with a five-year non-parole period) for three earlier armed robbery offences. He had been released to parole in late June 2006 and committed the first of the current offences within three weeks. He also had an extensive juvenile history, with 68 convictions recorded across 28 appearances in the Children's Court between the ages of 13 and 18.

Morgan DCJ sentenced the appellant to a total of 14 years imprisonment with a non-parole period of 10 years. When combined with the remaining parole period from the earlier sentence (two years and seven months), the appellant faced approximately 15 years and three months in custody before becoming eligible for parole on the current offences.

  • Whether the sentences imposed were manifestly excessive, having regard to the nature and number of the offences
  • Whether the total sentence was excessive when compared with statistical data from the Judicial Commission
  • Whether the sentencing judge properly applied the totality principle, given that the current sentences were accumulated upon an existing parole obligation

Decision

The Court acknowledged that the overall sentence sat at the high end of the range reflected in Judicial Commission statistics, with only one comparable case receiving the same total term. However, the Court found that a sentence at the top of any established range was inevitable given the number of serious offences, the Form 1 matters, and the circumstances of the offending.

On the totality principle, the Court confirmed that when sentencing for multiple offences, the aggregate must reflect a just and appropriate measure of total criminality and must not impose a "crushing" sentence that destroys any prospect of rehabilitation. The Court accepted these principles applied with equal force where an offender was already serving a sentence.

Despite those considerations, the Court was not persuaded that the total sentence was excessive. The sentencing judge had found no remorse and no indication the appellant intended to abandon his criminal conduct. The appellant had been given the opportunity of parole and had emphatically rejected it by reoffending within weeks of release. The need to punish, protect society, and provide both personal and general deterrence outweighed the rehabilitative concerns in the circumstances.

Leave to appeal was granted, but the appeal was dismissed unanimously.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentence at the high end of the statistical range is not in itself manifestly excessive where an offender faces multiple serious charges with additional Form 1 matters.
  • Under the totality principle, the aggregate of sentences imposed for multiple offences must represent a just and appropriate measure of the offender's total criminality and must not be so severe as to destroy motivation for rehabilitation.
  • Refusing to intervene, the Court emphasised that prior criminal history, while not relevant to the objective criminality of individual offences, remains relevant to considerations of personal deterrence.
  • Reoffending within weeks of release on parole for the same class of offence is a significant aggravating factor that weighs heavily against finding a sentence manifestly excessive.
  • The absence of remorse and the offender's failure to engage with rehabilitation programmes while in custody were factors the sentencing court was entitled to rely upon in declining to moderate the overall term.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 95, 97

Cases:
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
- R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- Clinch v R (1994) 72 A Crim R 301