Citation: R v Raniga [2009] NSWCCA 35
Court: NSW Court of Criminal Appeal
Date: 13 February 2009
Judge(s): Grove J, Blanch J, Latham J
Background
The respondent pleaded guilty in the District Court to two serious offences: robbery in company (carrying a maximum of 20 years imprisonment) and aggravated robbery (also carrying a maximum of 20 years). Both offences arose from a series of violent incidents in the early hours of 15 December 2007 in Hurstville, during which the respondent, intoxicated and in a group of males, assaulted and robbed multiple victims. Two further assault charges were listed on a Form 1 (meaning they were taken into account at sentencing without separate convictions being recorded).
The sentencing judge in the District Court deferred passing sentence on the first count on condition the respondent enter a four-year good behaviour bond under s9 of the Crimes (Sentencing Procedure) Act 1999. On the second count, the judge recorded a conviction but imposed no punishment at all, purportedly under s10A of the same Act.
The Crown appealed under s5D of the Criminal Appeal Act 1912, arguing the sentences were manifestly inadequate.
Legal Issues
- Whether the s9 bond imposed on the first count (robbery in company) was manifestly inadequate given the applicable guideline judgment in R v Henry
- Whether the complete absence of any penalty on the second count (aggravated robbery) was an error in principle
- Whether the respondent's personal circumstances constituted "exceptional circumstances" sufficient to justify a non-custodial outcome for offences of this seriousness
- The correct approach to Form 1 offences and whether they must result in a longer sentence than the primary offence would attract alone
- How the principle of double jeopardy applies when resentencing on a Crown appeal
Decision
The Court of Criminal Appeal allowed the Crown appeal, finding that both the deferred sentence on the first count and the absence of any penalty on the second count were errors.
On the first count, the Court applied the guideline judgment in R v Henry, which establishes that robbery in company offences of a defined category generally warrant a full custodial term of four to five years. The guideline further states that non-custodial sentences should be confined to truly exceptional cases. The sentencing judge relied on the respondent's youth, absence of prior criminal history, supportive family, and church involvement as exceptional circumstances. The Court rejected this characterisation: these were favourable features, but they were not exceptional in the relevant sense. They were commonly present in cases of this kind and did not justify departing so substantially from the guideline.
On the second count, the Court held that imposing no penalty at all was plainly wrong. Section 10A was introduced to allow nominal sentences where a court might otherwise impose something trivial (such as a 50-cent fine), not to permit a complete absence of punishment. The Court confirmed, applying the High Court's decision in Pearce v The Queen, that a sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation and totality. It followed that imposing nothing on a charge carrying a maximum of 20 years was an error in principle.
Regarding the Form 1 matters, the Court reiterated that the entire point of the Form 1 procedure is that it should produce a longer sentence than would have been imposed on the primary offence alone, and that the additional penalty can sometimes be substantial. In resentencing, the Court substantially reduced the sentences it would otherwise have imposed to reflect the double jeopardy inherent in a Crown appeal.
Orders Made
- Crown appeal allowed
- Orders of the District Court deferring sentence on the first count and imposing no sentence on the second count quashed
- First count (robbery in company, taking into account two Form 1 matters): non-parole period of 6 months, balance of term 18 months, commencing 13 February 2009; non-parole period to expire 12 August 2009
- Second count (aggravated robbery): non-parole period of 3 months commencing 13 August 2009, balance of term 12 months; release to parole on 12 November 2009 under supervision terms specified in the Schedule to the Sentencing Act
Key Takeaways
- The guideline judgment in R v Henry applies to both robbery in company (s97(1)) and aggravated robbery (s95) offences, and non-custodial sentences for such offences are reserved for genuinely exceptional cases, not merely cases with favourable personal circumstances.
- Youth, good character, family support, and religious involvement, while mitigating factors, do not in themselves constitute the "exceptional circumstances" needed to justify a non-custodial outcome for serious robbery offences.
- Under the Form 1 procedure, the resulting sentence must be longer than would have been imposed for the primary offence alone; a sentencing court cannot treat Form 1 matters as adding nothing to the overall sentence.
- Section 10A of the Crimes (Sentencing Procedure) Act 1999 permits nominal sentencing where a trivial penalty would otherwise be imposed, but it cannot be used to impose no penalty at all on a serious indictable offence, and does not override the requirement in Pearce v The Queen to fix an appropriate sentence for each offence.
- In Crown appeals, the double jeopardy principle operates to reduce the sentence that would otherwise be imposed on resentencing, reflecting the burden on the offender of going through the sentencing process twice.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s5D
- Crimes Act 1900 (NSW), ss 95, 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10A
Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment)
- R v Murchie (1999) 108 A Crim R 482
- Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 173 A Crim R 180
- Azzi v R [2008] NSWCCA 169
- R v Tortell & Tsegay [2007] NSWCCA 313
- Pearce v The Queen (1998) 194 CLR 610