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Court of Criminal Appeal 31 August 2009

Graham v Regina

[2009] NSWCCA 212

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL USE OF STATISTICS EFFECT OF PREVIOUS CRIMINAL RECORD

Citation: Graham v Regina [2009] NSWCCA 212
Court: NSW Court of Criminal Appeal
Date: 31 August 2009
Judge(s): Macfarlan JA, Grove J, Hoeben J (Hoeben J writing the principal judgment)

Background

The applicant pleaded guilty in the District Court to aggravated assault with intent to steal, take and drive a motor vehicle without the owner's consent, contrary to s 154C(2) of the Crimes Act 1900. The offence carried a maximum penalty of 14 years' imprisonment and a standard non-parole period of five years. A larceny offence was taken into account on a Form 1.

The offence arose from a planned robbery in Bankstown in December 2007. The applicant, who worked as a prostitute, lured the victim into his car and directed him to a car park. Her partner then appeared, produced a kitchen knife, and threatened the victim. The victim fled but was caught, threatened again, slashed with the knife, and robbed of his car keys. The applicant remained in the car and later shared in the $400 found in the victim's wallet, which was spent on the drug "ice."

The applicant had a deeply troubled background, including childhood abuse, long-term drug dependence, mental illness, and multiple suicide attempts. She was 32 at sentencing and had three children in foster care. Bennett DCJ sentenced her to four years' imprisonment with a non-parole period of two years. She sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the sentencing judge's notional starting point (before the guilty plea discount) was too high, resulting in a manifestly excessive sentence
  • Whether the judge gave adequate weight to the applicant's extensive subjective mitigating circumstances, including her mental health history, drug dependence, disadvantaged background, and limited culpability relative to her co-offender
  • Whether the use of sentencing statistics to identify a notional starting point was methodologically sound
  • Whether a sentence within range can nonetheless be manifestly excessive if the notional starting point used to derive it was itself erroneous

Decision

Hoeben J, with Macfarlan JA and Grove J agreeing, dismissed the appeal. The Court accepted that the applicant had a compelling subjective case, but held that her considerable mitigating circumstances had already been fully reflected in a 50 percent discount applied to the head sentence. That discount was described as at the high end of what could be justified.

The Court addressed the argument that the notional starting point of eight years was excessive. Citing R v Way (2004) 60 NSWLR 168, the Court affirmed that sentencing statistics are a guide only and cannot displace an independent assessment of objective seriousness. The offence involved planning, the use of a knife, an attack on a vulnerable victim, and a motive of funding drug use, all of which pointed to significant objective gravity.

The Court also addressed a deeper structural point about discounting. There is an irreducible minimum below which a sentence cannot descend without ceasing to reflect the objective seriousness of the offence and the purposes of punishment. Once multiple discounts are stacked together, each one necessarily constrains the room available for others. In this case, the final sentence of four years with a two-year non-parole period was described as sitting at the very bottom of the permissible range.

The Court held that, even if the notional starting point had been set too high, the sentence ultimately imposed fell within the permissible range and was not manifestly excessive. To impose a lower sentence would have produced a result that was manifestly inadequate.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence appeal will not succeed merely by challenging the notional starting point if the final sentence, after all discounts, falls within the permissible range.
  • Sentencing statistics are a tool to assist consistency, not a binding benchmark. A sentencing court must independently assess the objective seriousness of the particular offence.
  • There is an irreducible minimum sentence appropriate to any given offence. No combination of subjective mitigating factors, however compelling, can bring a sentence below that floor without producing an inadequate result.
  • Where multiple discounts are available (such as for a guilty plea, subjective circumstances, and assistance), each discount applied reduces the room available for others. The application of a 50 percent discount for a guilty plea was regarded as already at the high end of what the sentencing discretion permitted.
  • A previous criminal record is a relevant consideration that can limit the weight given to subjective mitigating factors. The sentencing court's approach to the applicant's record was upheld as properly reflecting that principle.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 117, 154C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Charlesworth v Regina [2009] NSWCCA 27
- MacDonald v Regina [2007] NSWCCA 105
- R v Henry (1999) 46 NSWLR 346
- Robertson v R [2007] NSWCCA 270
- Veen v The Queen (No 2) (1987-1988) 164 CLR 465
- R v Way (2004) 60 NSWLR 168
- SZ v R [2007] NSWCCA 19