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Court of Criminal Appeal 8 July 2009

R v Rossi-Murray

[2009] NSWCCA 177

Assault & violenceTheft & property
CRIMINAL LAW CROWN APPEAL WHETHER DEPARTURE FROM STANDARD NON PAROLE PERIOD TOO GREAT

Citation: R v Rossi-Murray [2009] NSWCCA 177
Court: NSW Court of Criminal Appeal
Date: 8 July 2009
Judge(s): Giles JA, Howie J, Buddin J

Background

The respondent pleaded guilty in the District Court to two serious offences committed on 5 March 2008: a specially aggravated break, enter and steal (home invasion) and wounding with intent to inflict grievous bodily harm. Both offences arose from a single criminal enterprise in which the respondent and a co-offender, armed with a hunting knife and handgun respectively, broke into a residential premises in Riverstone to steal steroids.

During the intrusion, a struggle ensued and the respondent re-entered the premises and stabbed the victim five times, penetrating his lung. The victim survived and was discharged from hospital five days later. The respondent was identified by the victim and others who had known him since childhood.

In the District Court, the respondent was sentenced to an overall term of 8 years with a non-parole period of 4 years and 6 months. The Crown appealed on the ground that the sentences were manifestly inadequate.

  • Whether the District Court correctly assessed the offences as falling within the mid-range of seriousness, particularly given the violent and planned nature of the conduct
  • Whether the sentencing judge's departure below the standard non-parole period of 7 years for each offence was justified
  • Whether the use of ex tempore (unreserved, on-the-spot) remarks was appropriate given the complexity of the sentencing exercise
  • Whether the sentencing judge adequately addressed statutory aggravating factors, including that the respondent was on conditional bail at the time of the offences

Decision

The Court of Criminal Appeal found that the District Court's sentences were manifestly inadequate. Howie J (with Giles JA and Buddin J agreeing) held that the offences were of a high order of seriousness, not merely mid-range. The home invasion involved careful planning, disguise, weapons, multiple victims, and occurred at night in a dwelling occupied by five residents. The wounding was a distinct and serious escalation of the overall criminality.

The Court identified several errors in the District Court's approach. The sentencing judge delivered ex tempore remarks in what was acknowledged to be a complex sentencing exercise, and those reasons failed to engage adequately with the statutory aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999. In particular, the judge did not refer to the fact that the respondent was on conditional bail at the time of the offences, which was a mandatory consideration.

On the question of the standard non-parole period (set at 7 years for each offence), the Court found that the departure below that benchmark was too great and insufficiently explained. The respondent's youth, plea of guilty, and subjective circumstances warranted some leniency, but not to the extent reflected in the original sentences.

The Court also noted that the increase in the overall sentence to reflect the wounding offence, above and beyond the home invasion sentence, was insufficient given the gravity of the stabbing. Howie J assessed that, standing alone, the home invasion should have attracted at least 9 years with a non-parole period of 5 years, and the wounding warranted meaningful additional accumulation.

Orders Made

  • The Crown appeal is allowed.
  • The sentences imposed in the District Court are quashed.
  • For the offence of wounding with intent to inflict grievous bodily harm: imprisonment with a non-parole period of 3 years 6 months and a balance of term of 3 years 6 months, dating from 15 April 2008; non-parole period expires 14 October 2011.
  • For the offence of specially aggravated break and enter: imprisonment with a non-parole period of 5 years and a balance of term of 4 years, dating from 15 October 2009; non-parole period expires 14 October 2014, being the respondent's earliest parole eligibility date.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge must expressly address all applicable statutory aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999, including that an offender was on conditional bail at the time of the offences; failure to do so constitutes a sentencing error.
  • Delivering ex tempore reasons in a complex, multi-offence sentencing exercise carries risk: the Court found the approach inadequate here given the number of factors requiring careful analysis.
  • Where an offender commits multiple serious offences in the one criminal enterprise, the sentence structure must meaningfully reflect the distinct and cumulative criminality of each offence, not merely impose nominal accumulation.
  • In dismissing the argument that the offences were mid-range, the Court emphasised that careful planning, disguise, weapons, multiple occupants, and a serious wounding collectively placed the conduct well above that assessment.
  • A standard non-parole period (here 7 years for each offence) operates as a legislative benchmark; significant departure below it requires clear and adequate justification, particularly where aggravating factors are present and substantial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 105A, 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases:
- Carroll v The Queen [2009] HCA 13; 83 ALJR 579
- R v AB [2005] NSWCCA 360
- The Queen v Osenkowski (1982) 30 SASR 212
- R v Li (NSWCCA, unreported, 9 July 1997)