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Court of Criminal Appeal 24 July 2009

Ta v R

[2009] NSWCCA 196

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE TWO ROBBERIES AND ONE ATTEMPTED ROBBERY PLANNED AND CO WHETHER SENTENCES MANIFESTLY EXCESSIVE LEAVE REFUSED

Citation: Ta v R [2009] NSWCCA 196
Court: New South Wales Court of Criminal Appeal
Date: 24 July 2009
Judge(s): Basten JA, Hulme J, Johnson J

Background

The applicant was convicted by jury of two counts of robbery whilst armed with a dangerous weapon and one count of attempted robbery whilst armed with a dangerous weapon, all committed on the same night in February 2007. The offences involved a coordinated series of attacks on three separate Sydney hotels carried out over a period of roughly 15 minutes, using a stolen vehicle, a pistol, a samurai sword, gloves, hoods, and two-way radios.

The applicant acted as the driver and played an active role in each offence, including threatening a staff member at gunpoint and using the vehicle as a weapon against a fleeing bar worker. Over $90,000 in cash was taken across the two completed robberies.

At sentencing in the Parramatta District Court, the applicant received accumulated sentences totalling an effective non-parole period of six years, with a balance of term of two years. He sought leave to appeal, arguing that the sentences were manifestly excessive and that the accumulation was erroneous.

  • Whether the three offences, all committed on the same night as part of a coordinated criminal enterprise, should have been treated as part of the same criminal enterprise for sentencing purposes
  • Whether the sentencing judge erred in accumulating (stacking) the sentences rather than making them concurrent or partially concurrent
  • Whether the total effective sentence was manifestly excessive
  • Whether leave to appeal against sentence should be granted

Decision

The Court of Criminal Appeal refused leave to appeal, but did so in terms that were notably critical of the original sentencing. Johnson J, with whom Basten JA agreed on the result, found that the sentencing judge had not adequately distinguished the applicant's case from the baseline set in R v Henry (1999) 46 NSWLR 346, which contemplates a less serious form of armed robbery.

The Court identified several features that should have driven the sentences substantially higher than the Henry baseline: the offences involved multiple victims at each location who were all threatened with a pistol and/or samurai sword; large sums were taken; the planning was described as executed with "military precision"; there was no plea of guilty (which alone would ordinarily add roughly one-third to a sentence); and the applicant himself used the vehicle as a weapon against a fleeing witness. Johnson J described it as "incomprehensible" that the sentencing judge had referred to Henry without adequately reflecting those differences.

The Court also found that the sentencing judge had misapplied the law on prior convictions, incorrectly treating them as relevant only to individual deterrence. This approach was inconsistent with the High Court's guidance in Veen v The Queen (No 2) (1988) 164 CLR 465, which establishes a broader role for criminal history in sentencing.

Despite these errors, the Court refused leave to appeal because, in the absence of a Crown appeal, it could not increase the effective sentence. The applicant's challenge was to have the sentences reduced; given the Court's view that the sentences were arguably too low rather than too high, that ground was not made out.

Orders Made

  • Application for leave to appeal against the sentences imposed by the District Court on 15 August 2008 is refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed that R v Henry provides a sentencing baseline for armed robbery, but that baseline requires meaningful upward adjustment where the offending diverges materially, including in the number of victims, the degree of planning, the sums taken, and the absence of a guilty plea.
  • A sentencing judge's failure to adequately distinguish an offender's case from a guideline judgment, where the facts plainly called for a higher sentence, can constitute error even if the result does not attract a successful appeal.
  • Under Veen v The Queen (No 2), prior convictions are not relevant solely to individual deterrence; the sentencing court is required to treat criminal history in accordance with that High Court authority.
  • In refusing leave, the Court of Criminal Appeal noted the procedural constraint that, without a Crown appeal, it was unable to increase what it appeared to regard as an inadequate effective sentence.
  • Coordinated offences committed across multiple locations on the same night do not automatically result in fully concurrent sentences; accumulation may be appropriate where the offending, though part of one enterprise, involved distinct criminal acts against different victims.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- R v Henry (1999) 46 NSWLR 346
- Veen v The Queen (No 2) (1987-1988) 164 CLR 465
- Nguyen v R [2007] NSWCCA 14
- R v XX [2009] NSWCCA 115
- R v Fadi Jajou [2009] NSWCCA 167
- Clarke v R [2009] NSWCCA 49