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Court of Criminal Appeal 11 March 2009

Trad v R

[2009] NSWCCA 56

Also reported as (2009) 194 A Crim R 20
Fraud & dishonestyTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCING AGGRAVATED CAR JACKING AND ROBBERIES IN COMPANY TOTALITY SENTENCES NOT MANIFESTLY EXCESSIVE

Citation: Trad v R [2009] NSWCCA 56
Court: NSW Court of Criminal Appeal
Date: 11 March 2009
Judge(s): Grove J, Buddin J, Price J

Background

The appellant was convicted after a five-day District Court trial on four counts: two counts of robbery in company, one count of aggravated car-jacking, and one count of disposing of stolen property. He had pleaded guilty to a fifth count of dishonestly interfering with a unique identifier. All offences arose from a scheme in which the appellant used an online car sale advertisement to lure two victims to a car park in Auburn, where he and four co-offenders robbed them at apparent gunpoint and drove away with the car.

Following the robbery and car-jacking, the appellant engaged in a vehicle "re-birthing" operation: he stripped identification numbers from a damaged car he had purchased at auction and welded them onto the stolen vehicle, effectively disguising its identity. He then sold the fraudulently altered car for $15,000. The buyer lost the vehicle within hours when it was stolen and burned, and suffered a $15,000 loss having had no opportunity to insure it.

The appellant was 20 years old at the time of the offending. On 4 April 2008, the District Court sentenced him to a total effective term of 8 years and 3 months imprisonment, with a non-parole period of 5 years and 3 months. He appealed to the Court of Criminal Appeal on three grounds.

  • Whether the sentencing judge erred in assessing the objective seriousness of the robbery and car-jacking offences
  • Whether the sentencing judge failed to adequately reflect a finding of "special circumstances" in structuring the sentences (specifically, whether the balance of term after the non-parole period was insufficient)
  • Whether the overall sentence was manifestly excessive, including whether the principle of totality required greater concurrency between the robbery and car-jacking sentences

Decision

The Court of Criminal Appeal, with Price J delivering the principal judgment and Grove and Buddin JJ agreeing, dismissed the appeal on all grounds.

On objective seriousness, the court found no error in the sentencing judge's assessment. The offences involved the deliberate targeting of victims through a premeditated ruse, the use of an apparent firearm, multiple offenders acting together, and two separate victims who were each robbed of personal property. These features supported the sentencing judge's characterisation of the offending.

On special circumstances, the court considered the structure of the sentences, including the balance of term remaining after the non-parole period. No error was identified in the manner in which any finding of special circumstances had been reflected in the sentence.

On totality, the court accepted that the sentencing judge had expressly turned his mind to the principle, referring to the High Court's decision in Pearce v The Queen. The court noted that the robberies involved separate criminal acts directed at two distinct victims, and that the car-jacking was a further discrete offence. The partial accumulation of the robbery sentences on one another, and of the car-jacking sentence on the robbery sentences, was modest in effect: the robbery sentences added only one and two months respectively to the overall term. Concurrent sentences were imposed for counts 4 and 5, which were subsumed within the car-jacking sentence. The court found no error in the sentencing structure and concluded the overall sentence fell within the legitimate range of sentencing discretion.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that partial accumulation of sentences for offences committed in the same episode is not inherently inconsistent with the totality principle, particularly where separate victims are involved and each count involves a distinct criminal act.
  • A sentencing judge's assessment of objective seriousness will not be disturbed on appeal absent identifiable error; the presence of a weapon, multiple offenders, and premeditated targeting of victims are relevant aggravating features.
  • Under the totality principle as applied in this case, wholly concurrent sentences are not automatically required merely because offences arise from the same transaction, especially where each offence has a distinct victim or involves separate conduct.
  • No error was established in the sentencing judge's treatment of special circumstances in structuring the non-parole period and balance of term.
  • In dismissing the appeal, the court reaffirmed the principle from House v The Queen that appellate courts will not substitute their own discretion for that of the sentencing judge unless error is demonstrated.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 154C(2), 154H(1)(a), 154J, 188(1)

Cases:
- House v The Queen (1936) 55 CLR 499
- Pearce v The Queen (1998) 194 CLR 610
- R v Henry (1999) 46 NSWLR 346
- R v Fernando [2002] NSWCCA 28
- R v Johnson [2004] NSWCCA 140
- Regina v Cramp [2004] NSWCCA 264
- R v Way (2004) 60 NSWLR 168
- R v Barker, R v Gibson [2006] NSWCCA 20
- Mulato v R [2006] NSWCCA 282
- R v MMK (2006) 164 A Crim R 481
- Versluys v R [2008] NSWCCA 76