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Court of Criminal Appeal 23 October 2009

DEVINE, Kane Mitchell v R

[2009] NSWCCA 261

Fraud & dishonestyTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE ROBBERY

Citation: DEVINE, Kane Mitchell v R [2009] NSWCCA 261
Court: NSW Court of Criminal Appeal
Date: 23 October 2009
Judges: Latham J, Fullerton J, Schmidt J

Background

The appellant pleaded guilty in the Local Court to two charges: dealing with property reasonably suspected of being proceeds of crime (under s 193C(1) of the Crimes Act 1900) and robbery (under s 94 of the same Act). Both matters were committed to the District Court for sentencing, where the pleas were maintained.

The District Court sentenced the appellant to a fixed term of 6 months for the first charge and 2 years imprisonment (comprising an 18-month non-parole period and a 6-month balance of term) for the robbery. Both sentences were to commence on 1 September 2008. At the time of the offending, the appellant was subject to a Drug Court suspension order, and his participation in that program had been terminated following his arrest.

Before the Court of Criminal Appeal, the appellant raised two distinct problems: that the District Court lacked jurisdiction to sentence him on the first charge at all, and that the sentencing judge had failed to explicitly acknowledge the guilty plea discount when sentencing on the robbery.

  • Whether the District Court had jurisdiction to sentence the appellant on the charge under s 193C(1) of the Crimes Act 1900, given that it is a strictly summary offence under the Criminal Procedure Act 1986
  • Whether the sentencing judge's failure to make explicit reference to the guilty plea when sentencing on the robbery charge constituted a sentencing error
  • Whether the non-parole period imposed for the robbery was manifestly excessive
  • Whether, if error were established, a lesser sentence for the robbery was warranted in law

Decision

On the summary offence conviction: The Court confirmed that an offence under s 193C(1) of the Crimes Act 1900 is, by operation of s 6 of the Criminal Procedure Act 1986, strictly a summary offence. The District Court therefore had no jurisdiction to deal with it. Consistent with the Court's earlier decision in Hosseini v R [2009] NSWCCA 52, the conviction was quashed and the matter remitted to the Local Court.

On the failure to mention the guilty plea: The sentencing remarks contained no explicit reference to a discount for the guilty plea on the robbery charge. Drawing on R v Thomson; R v Houlton [2000] NSWCCA 309, the Court confirmed that a sentencing judge is required to expressly state what discount, if any, has been applied for a guilty plea. The absence of any such reference amounted to an error, and leave to appeal on this ground was granted.

On manifest excess: The Court held that the failure to mention the guilty plea was sufficient to establish error, making it unnecessary to determine whether the non-parole period was manifestly excessive in isolation. The Crown argued that an 18-month non-parole period remained warranted in law, given the vulnerability of the victim, the appellant's breach of conditional liberty under the Drug Court, and his prior record. The Court rejected that submission, characterising the robbery as impulsive rather than predatory, involving relatively mild force. The Court also noted evidence of genuine positive steps toward rehabilitation.

On resentencing: A lesser sentence was held to be warranted. The Court substituted a non-parole period of 12 months with a balance of term of 6 months, commencing 1 September 2008, entitling the appellant to immediate release.

Orders Made

  • The conviction for dealing with property suspected of being proceeds of crime is quashed and the matter remitted to the Local Court.
  • Leave to appeal against the sentence for robbery is granted and the appeal is allowed.
  • The sentence for robbery is quashed and replaced with a non-parole period of 12 months and a balance of term of 6 months, commencing 1 September 2008. The appellant is entitled to be released.

Key Takeaways

  • An offence under s 193C(1) of the Crimes Act 1900 is a strictly summary offence; the District Court has no jurisdiction to sentence for it, even when the matter is committed up from the Local Court.
  • Under the principle affirmed in R v Thomson; R v Houlton, a sentencing judge must explicitly state the discount applied for a guilty plea; silence on this point constitutes identifiable error justifying appellate intervention.
  • The Court of Criminal Appeal distinguished between an impulsive robbery involving mild force and a predatory one, treating the former as less serious for the purposes of objective culpability on resentencing.
  • Where a sentence imposed by the Drug Court overlaps with offending that could have been dealt with in that Court, a degree of concurrence in sentences may appropriately reflect the totality principle, even when sentencing occurs in a different court.
  • In assessing whether a lesser sentence is warranted at law, the Court weighed the aggravating feature of breach of conditional liberty against evidence of genuine rehabilitative progress.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 94, 193C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(j), 44(2)
- Criminal Appeal Act 1912 (NSW), s 8A
- Criminal Procedure Act 1986 (NSW), s 6
- Drug Court Act 1998 (NSW), s 7A(5)
- Justices Act 1902 (NSW, repealed), s 80AA

Cases:
- Hosseini v R [2009] NSWCCA 52
- Leslie v R [2009] NSWCCA 203
- Morris, Morris and Snelson v R [2008] NSWCCA 182
- R v Lawrence [2005] NSWCCA 91
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383