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Court of Criminal Appeal 25 March 2009

FARRELL, Michael Anthony v R

[2009] NSWCCA 77

Assault & violenceTheft & property
CRIMINAL LAW APPEAL SENTENCE TWO SENTENCES FOR ARMED ROBBERY NO ISSUE OF PRINCIPLE NO IDENTIFIABLE OR MANIFEST ERROR

Citation: FARRELL, Michael Anthony v R [2009] NSWCCA 77
Court: NSW Court of Criminal Appeal
Date: 25 March 2009
Judge(s): McClellan CJ at CL, Buddin J, Rothman J

Background

The appellant had been convicted by a jury of two armed robberies committed on consecutive days in July 2006, both involving knife-point threats at service stations in Coffs Harbour. The District Court sentenced him to six years imprisonment with a non-parole period of four years and six months for each offence, with the two sentences made partly concurrent by staggering the commencement date of the second sentence by six months.

Separately, a Local Court had imposed a 10-month sentence for a break, enter and steal offence committed approximately one month before the robberies. The District Court ordered that its sentences run consecutively with that earlier Local Court sentence.

The appellant sought leave to appeal against the District Court sentences, arguing that when the three sentences were viewed together, the overall non-parole period was excessive because the sentencing judge had failed to give proper weight to the totality principle.

  • Whether the sentencing judge failed to give adequate regard to the totality principle when imposing sentences for the two armed robberies to run consecutively with the earlier Local Court sentence
  • Whether the overall combined effect of the three sentences was excessive or manifestly excessive

Decision

The Court of Criminal Appeal rejected the sole ground of appeal. Rothman J, with whom McClellan CJ at CL and Buddin J agreed, found no identifiable error in the sentencing judge's approach to totality. The two District Court sentences produced an overall non-parole period of five years with a balance of term of 18 months, a ratio that conformed with section 44(2) of the Crimes (Sentencing Procedure) Act 1999 and involved only a minor departure from the standard 3:1 ratio, consistent with earlier Court of Criminal Appeal authority.

On the question of consecutiveness with the Local Court sentence, the Court found the approach was appropriate. The break, enter and steal offence had occurred a month earlier, was not part of the same criminal episode as the armed robberies, and was not of a similar kind. That combination of factors distinguished the Local Court offence from the two armed robberies, which, though separate offences, were one day apart, involved substantially similar conduct, and formed a discrete episode of criminality justifying partial concurrency between themselves.

The Court concluded that the three sentences, viewed in totality, did not reflect any identifiable error and were not excessive in any overall sense. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that section 44(2) of the Crimes (Sentencing Procedure) Act 1999 does not prohibit a balance of term that is less than one-third of the non-parole period; the sentencing court retains a discretion to fix the ratio within that statutory constraint, having regard to the particular offender's circumstances.
  • Concurrent or partly concurrent sentences are appropriate where offences, though separate, are substantially contemporaneous and connected; where offences occur on consecutive days, involve similar criminality, and form a discrete episode, adjusting commencement dates to reflect partial concurrency is an accepted sentencing approach.
  • Where an earlier sentence was imposed for an offence of a different character, committed at a different time and forming no part of the same criminal episode, making subsequent sentences consecutive with that earlier sentence is not necessarily an error against the totality principle.
  • No error was established simply because the aggregate of sentences from multiple courts appeared substantial; the Court assessed whether the overall effect reflected a proper application of totality rather than treating the combined term in isolation.
  • In dismissing the appeal, the Court applied the principle in Pearce v R that a sentencing judge must fix an appropriate sentence for each offence and then separately address questions of cumulation, concurrence, and totality.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- Pearce v R [1998] HCA 57; 194 CLR 610
- R v Ibrahim [2005] NSWCCA 43
- Robertson v R [2009] NSWCCA 38