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Court of Criminal Appeal 27 February 2009

McMenemy v R

[2009] NSWCCA 50

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING ROBBERY IN COMPANY SENTENCE MANIFESTLY EXCESSIVE

Citation: McMenemy v R [2009] NSWCCA 50
Court: NSW Court of Criminal Appeal
Date: 27 February 2009
Judge(s): Grove J, Price J, Buddin J

Background

The applicant pleaded guilty in the District Court to six charges arising from a series of offences committed in the Mascot area between April and May 2007. The offences included break, enter and steal, two counts of demanding property with menaces, robbery in company, malicious damage, and robbery. Two further matters (receiving and larceny) were taken into account on a Form 1 (a mechanism by which a court takes additional offences into account when sentencing without recording separate convictions).

At the time of the offending, the applicant was 21 years old. He had a difficult background, having been removed from the care of his drug-using teenage mother and placed through a succession of foster homes before being reunited with her at age twelve.

The District Court sentenced the applicant to a total effective sentence of 8 years, with a non-parole period of 5 years and 6 months. The applicant sought leave to appeal to the Court of Criminal Appeal, contending that the sentence was manifestly excessive.

  • Whether the total effective sentence of 8 years, with a non-parole period of 5 years and 6 months, was manifestly excessive
  • Whether the structure of the sentences, including the partial accumulation of the sentence for the robbery in company charge on the sentence for the break, enter and steal charge, was erroneous
  • Whether the principle of totality had been properly applied by the sentencing judge

Decision

The Court of Criminal Appeal found no error in the structure of the sentences. The sentencing judge had appropriately considered the principle of totality, consistent with the approach required by Pearce v The Queen (1998) 194 CLR 610, and it was open to him to partially accumulate the sentence for the robbery in company charge. The Court also confirmed the finding of special circumstances (which justified varying the standard ratio between non-parole period and balance of term).

However, the Court accepted that the length of the sentence imposed for the robbery in company charge (charge 3, under s 97(1) of the Crimes Act 1900) caused the total effective sentence to be manifestly excessive. Price J, with Grove J and Buddin J agreeing, held that some other sentence was warranted in law within the meaning of s 6(3) of the Criminal Appeal Act 1912.

The sentence for the robbery in company charge was reduced from 5 years and 6 months to 4 years and 6 months, with the non-parole period for that charge reduced from 3 years to 2 years. As a result, the total effective sentence became 7 years, with a non-parole period of 4 years and 6 months.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence allowed in part: the sentence imposed for the offence under s 97(1) of the Crimes Act 1900 (charge 3) was quashed and replaced with a non-parole period of 2 years commencing 30 November 2009 and expiring 29 November 2011, with a balance of term of 2 years and 6 months expiring 29 May 2014
  • All other sentences confirmed
  • Earliest date of eligibility for release to parole: 29 November 2011

Key Takeaways

  • The Court of Criminal Appeal confirmed that the structure of accumulated sentences was not itself erroneous, but that the length of one component sentence rendered the overall penalty manifestly excessive.
  • Under s 6(3) of the Criminal Appeal Act 1912, an appellate court may intervene and re-sentence where it is satisfied that some other sentence is warranted in law.
  • The totality principle is not a stand-alone discretionary exercise; it must be applied within the framework established by Pearce v The Queen (1998) 194 CLR 610, which requires a sentencing court to fix an appropriate sentence for each individual offence before turning to questions of concurrence, accumulation, and overall proportionality.
  • Decisions about whether sentences should be concurrent or accumulated remain within the sentencing judge's discretion, circumscribed by a proper application of the totality principle: R v MMK (2006) 164 A Crim R 481.
  • In allowing the appeal, the Court reduced the total effective sentence from 8 years to 7 years, with the non-parole period reduced from 5 years and 6 months to 4 years and 6 months.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 94, 97(1), 99(1), 99(2), 112(1), 195(1)
- Criminal Appeal Act 1912 (NSW): s 6(3)

Cases
- Pearce v The Queen (1998) 194 CLR 610
- R v Henry (1999) 46 NSWLR 346
- R v MMK (2006) 164 A Crim R 481