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Court of Criminal Appeal 25 February 2009

Natoli v R

[2009] NSWCCA 36

Assault & violenceFirearms & weapons

Citation: Natoli v R [2009] NSWCCA 36
Court: NSW Court of Criminal Appeal
Date: 25 February 2009
Judge(s): McClellan CJ at CL, James J, Buddin J

Background

The appellant pleaded guilty in the District Court to multiple serious offences committed over a ten-day period in November 2006. The offences included one count of assault with intent to rob while armed, four counts of robbery while armed, and a further robbery in company. Most of the offences involved the appellant approaching passengers on suburban trains, producing what appeared to be a handgun (but was in fact a replica), and demanding cash or mobile phones. Some incidents also involved direct physical violence, including punches, headlocks, and holds around the neck.

The remaining offence, described as the "committal offence," occurred at the University of Sydney on a Sunday when the grounds were deserted. The appellant and a co-offender confronted a staff member, physically struggled with them, kicked the victim in the head, and stole a mobile phone.

The District Court (Woods DCJ) sentenced the appellant to a total head sentence of 12 years and a total non-parole period of 8 years and 9 months. The appellant sought leave to appeal on the ground that those sentences were manifestly excessive (that is, so disproportionate to the offending as to constitute error in themselves).

  • Whether the total sentence of 12 years with a non-parole period of 8 years and 9 months was manifestly excessive in all the circumstances.
  • Whether the sentencing judge gave adequate weight to the appellant's subjective circumstances, including his youth, impaired cognitive capacity, early guilty pleas, and lack of prior criminal history.

Decision

James J, with whom McClellan CJ at CL and Buddin J agreed, found that the total non-parole period was manifestly excessive. The individual head sentences for each group of offences were not themselves criticised and were left undisturbed. The problem lay in the cumulative effect of the consecutive non-parole periods, which produced an aggregate that was disproportionately severe given the appellant's personal circumstances.

The Court placed particular weight on the appellant's youth (he was 22 at the time of sentencing), his low intelligence and significant impairment of cognitive capacity as established by psychological evidence, his early guilty pleas, and his absence of any prior criminal history. Sentencing statistics for offences under section 97 of the Crimes Act also provided some support for the view that the sentences were extremely severe by comparison with comparable cases.

The Court did not disturb the individual head sentences but restructured the commencement dates of several sentences to compress the total span of consecutive terms. For count 1 (assault with intent to rob), the Court quashed the original sentence and re-sentenced the appellant to a head sentence of six years with a non-parole period of two years and eight months. The overall result reduced the aggregate non-parole period to six years and eight months, representing two-thirds of the revised total head sentence of ten years.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed in part.
  • Sentences for counts 4 and 5 varied to commence on 30 November 2007 and expire on 29 May 2012.
  • Sentence for the committal offence varied to commence on 30 November 2008 and expire on 29 August 2012.
  • Sentence on count 1 quashed and replaced with a non-parole period of 2 years and 8 months (commencing 30 November 2010, expiring 29 July 2013) and a parole period of 3 years and 4 months (commencing 30 July 2013, expiring 29 November 2016).
  • All other sentences confirmed.
  • Earliest date of eligibility for parole: 29 July 2013.

Key Takeaways

  • Manifestly excessive sentences can be established through the cumulative effect of consecutive non-parole periods, even where each individual sentence is not separately criticised.
  • The Court of Criminal Appeal confirmed that youth, impaired cognitive capacity, early guilty pleas, and the absence of prior criminal history are significant mitigating factors that must be given meaningful weight in the overall sentencing exercise.
  • Sentencing statistics, while to be used with caution, may provide legitimate contextual support for a ground of manifest excess when the aggregate sentence appears markedly out of step with comparable cases.
  • In re-sentencing, the Court preserved the individual head sentences as appropriate to the objective gravity of each group of offences, but restructured commencement dates to bring the total non-parole period into proportion with the total head sentence.
  • Under section 97 of the Crimes Act, armed robbery carries a maximum penalty of 20 years' imprisonment and no standard non-parole period applies, leaving the sentencing court with significant but not unconstrained discretion in calibrating cumulative sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 97(1) (robbery while armed, maximum 20 years)
- Crimes (Sentencing Procedure) Act (NSW)

Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on armed robbery sentencing)
- Cahyahi v The Queen (2007) 168 A Crim R 41
- R v Weldon (2002) 136 A Crim R 55