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Court of Criminal Appeal 2 July 2009

Steele v R

[2009] NSWCCA 209

Assault & violenceTheft & property
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE SUBJECTIVE FEATURES OF APPELLANT DISCOUNT FOR ASSISTANCE TO AUTHORITIES SENTENCE MANIFESTLY EXCESSIVE

Citation: Steele v R [2009] NSWCCA 209
Court: New South Wales Court of Criminal Appeal
Date: 2 July 2009
Judge(s): McClellan CJ at CL, Hidden J, McCallum J

Background

The appellant pleaded guilty in the District Court to robbery in company, contrary to s 97(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. The offence involved a sustained attack on a victim aboard a train near Mt Victoria, during which the appellant and a co-offender kicked and punched the victim repeatedly, including while he was on the ground. The victim suffered facial bruising, lacerations, and multiple abrasions.

The appellant was sentenced by Hulme DCJ to a non-parole period of two years with a balance of term of one year and nine months. He sought leave to appeal that sentence to the Court of Criminal Appeal.

The plea was entered approximately one week before the listed trial date. At the same time, the appellant provided a statement to police and offered to give evidence against his co-offender, who subsequently changed his own plea to guilty upon learning of the appellant's willingness to testify.

  • Whether the sentencing judge failed to properly account for the appellant's subjective features, including his age, family circumstances, rehabilitation prospects, and history of substance abuse
  • Whether a discount of only 15 per cent for assistance to authorities was inadequate in the circumstances
  • Whether the sentence was manifestly excessive, including when compared with the sentence imposed on the co-offender

Decision

The Court rejected the argument that the sentencing judge had inadequately considered the appellant's subjective circumstances. Hulme DCJ had carefully examined the appellant's age, his role as a father, his history of substance abuse, his participation in rehabilitation programs, and his prospects for rehabilitation. The sentencing judge had also found reasonable prospects of rehabilitation, primarily based on counselling and courses completed under supervision for an earlier assault offence.

On the question of the assistance discount, the Court accepted that the sentencing judge had properly assessed the value of the appellant's cooperation. While the appellant's statement was noted to be vague on detail, it was consistent with the victim's account and identified the co-offender. The Court found that a 15 per cent discount was within the appropriate range given those limitations, and no error was established in that assessment.

The Court also found no error arising from a comparison with the co-offender's sentence. The co-offender had different subjective circumstances, including an intellectual disability and no significant prior record, which justified differential treatment. McClellan CJ at CL noted that the sentencing judge had started his assessment at five years, in the middle range suggested by the guideline in R v Henry, despite finding the offence more serious than a typical case. The Court observed that the appellant was subject to a bond at the time of the offence, a factor that could have warranted a more severe sentence than that imposed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a 15 per cent discount for assistance to authorities was open to the sentencing judge where the content of the offender's statement was vague and its value was limited to corroborating the victim's account and identifying the co-offender.
  • A difference in sentences between co-offenders does not of itself demonstrate error where the co-offenders have meaningfully different subjective circumstances, such as intellectual disability and criminal history.
  • The sentencing court's assessment of objective seriousness may place an offence above the typical range identified in a guideline judgment where the violence involved was sustained and included kicking the victim while on the ground.
  • No error was established simply because the sentencing judge did not explicitly identify the appellant's bond status as an aggravating factor; the Court of Criminal Appeal noted that a more severe sentence would not have been unreasonable given that circumstance.
  • Subjective features, including participation in rehabilitation programs, family responsibilities, and prospects for rehabilitation, are relevant considerations at sentence but do not automatically reduce an otherwise appropriate penalty.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)

Cases:
- R v Henry (1999) NSWCCA 111; (1999) 46 NSWLR 346 (guideline judgment for robbery in company)
- R v Sukkar (2006) 172 A Crim R 151
- SZ v R [2007] NSWCCA 19; 168 A Crim R 249