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Court of Criminal Appeal 24 September 2009

Frahm v R

[2009] NSWCCA 249

Assault & violenceTheft & property
APPEAL CRIMINAL LAW SENTENCING ASSAULT WITH INTENT TO ROB IN COMPANY SIGNIFICANT CRIMINAL HISTORY WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Frahm v R [2009] NSWCCA 249
Court: NSW Court of Criminal Appeal
Date: 24 September 2009
Judge(s): McClellan CJ at CL, Buddin J, Hall J

Background

The applicant pleaded guilty in the District Court to assault with intent to rob in company, an offence carrying a maximum penalty of 20 years imprisonment. The offence arose from an attempt to rob a grocery store owner, during which the applicant demanded money at the counter while a co-offender was present. The store owner refused, ran from the register, and the applicant and his co-offender left empty-handed.

The District Court sentenced the applicant to a head sentence of 4 years 6 months with a non-parole period of 3 years. The sentencing judge indicated that, absent the 25% discount for an early guilty plea, the starting point would have been 6 years imprisonment. A finding of special circumstances was made to allow a longer period of supervised parole to assist rehabilitation.

The applicant sought leave to appeal, arguing that the sentence was manifestly excessive and that the sentencing judge had misapplied the relevant guideline judgment and placed excessive weight on his prior criminal history.

  • Whether the sentencing judge placed excessive weight on the applicant's prior criminal history
  • Whether the sentencing judge adequately reflected the low objective seriousness of the offence
  • Whether the sentencing judge erred by placing too great a weight on the guideline judgment in R v Henry
  • Whether the overall sentence and non-parole period were manifestly excessive

Decision

The Court of Criminal Appeal found no specific identifiable error in the sentencing judge's description of the applicant's criminal history or her general approach to it. The judge's remarks were consistent with the High Court's guidance in Veen v The Queen (No 2). However, the real complaint, that undue weight had been given to antecedents, was better assessed alongside the other grounds.

On the guideline issue, the Court found that the sentencing judge had fallen into error by treating the Henry guideline range as a floor and then building upward from it to account for the applicant's criminal history. The proper approach was to sentence within the range identified in Henry where that range applied to the objective seriousness of the offence, not to use antecedents to push the starting point above that range. The Court noted that the objective gravity of the offence was low: no weapon was used, no money was obtained, and the victim was not physically harmed.

The Court also observed that the 25% discount for the early plea was at the top of the range identified in R v Thomson and Houlton, whereas the Henry guideline had contemplated only a late plea of limited value. This made the resulting sentence even harder to justify.

Taking into account additional affidavit evidence showing productive use of time in custody, and again finding special circumstances, the Court resentenced the applicant to a total term of 3 years 3 months with a non-parole period of 2 years.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; sentence imposed in the District Court quashed
  • Applicant resentenced to a non-parole period of 2 years commencing 1 April 2008 and expiring 31 March 2010, with a total term of 3 years 3 months expiring 30 June 2011
  • Applicant eligible for release to parole on 31 March 2010

Key Takeaways

  • Using a guideline sentencing range as a baseline and then increasing beyond it solely on account of an offender's criminal history constitutes a misapplication of the guideline; antecedents are relevant to the overall sentencing exercise but do not operate to elevate the starting point above the range applicable to the objective gravity of the offence.
  • The Court of Criminal Appeal confirmed that a guideline judgment sets a range informed by objective seriousness and is "not a tramline", and that departing from it requires proper justification tied to the facts of the individual case.
  • Where an offender receives a discount at the upper end of the range recognised in R v Thomson and Houlton, this is a material distinction from the late-plea scenario contemplated in R v Henry and must be reflected in the sentence ultimately imposed.
  • Low objective seriousness, even when combined with a significant criminal history, does not automatically warrant a sentence at or above the upper end of a guideline range; the two considerations must be balanced against each other.
  • A finding of special circumstances, justifying a longer-than-usual parole period, remains available where rehabilitation needs are established, and fresh evidence of productive conduct in custody is a relevant consideration on resentencing.

Legislation and Cases Referenced

Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for robbery offences)
- R v Thomson and Houlton (2000) 49 NSWLR 383 (guilty plea discounts)
- Veen v The Queen (No 2) (1988) 164 CLR 465 (use of prior criminal history in sentencing)
- Legge v R [2007] NSWCCA 244
- R v Black [2001] NSWCCA 41
- R v Lesi [2005] NSWCCA 63
- R v Murchie [1999] 108 A Crim R 482
- R v Osborne [2001] NSWCCA 371
- R v Perese (2001) 126 A Crim R 508
- R v Stanley [2003] NSWCCA 233

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW) (regarding use of juvenile convictions)