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Court of Criminal Appeal 6 April 2009

R v Chamma

[2009] NSWCCA 92

Assault & violenceTheft & property
CROWN APPEAL ROBBERY IN COMPANY SENTENCE OF PERIODIC DETENTION HENRY GUIDELINE WHETHER MANIFESTLY INADEQUATE

Citation: R v Chamma [2009] NSWCCA 92
Court: Court of Criminal Appeal, New South Wales
Date: 6 April 2009
Judge(s): McClellan CJ at CL, Simpson J, Buddin J

Background

The respondent pleaded guilty in the District Court to robbery in company arising from a convenience store robbery in Sefton in February 2008. Three men entered the store, one threatened the console operator with a knife, and the others grabbed cigarettes and cash totalling approximately $3,000 to $3,500. The respondent's role was to drive the getaway vehicle, a van he had stolen earlier that evening. He drove the offenders from the scene at high speed before being arrested.

The Crown could not establish that the respondent knew of the knife before the offence, and he was sentenced as a principal in the second degree. Three additional matters were taken into account on a Form 1, including theft of the van, dangerous driving during the getaway, and driving while disqualified.

The District Court imposed a term of 2 years and 5 months imprisonment with a non-parole period of 1 year and 2 months, ordered to be served by way of periodic detention commencing February 2009. The Crown appealed, contending the sentence was manifestly inadequate.

  • Whether the sentence of periodic detention for robbery in company was manifestly inadequate in light of the objective seriousness of the offence and the guideline judgment in R v Henry
  • Whether the sentencing judge engaged in impermissible "double-counting" by giving excessive weight to rehabilitation considerations when determining both the head sentence and the mode of service
  • Whether the Court of Criminal Appeal should exercise its residual discretion to decline to intervene even if error were established

Decision

The Court of Criminal Appeal, in a judgment delivered by Buddin J (with McClellan CJ at CL and Simpson J agreeing), found that the sentencing judge had erred. The sentencing judge's reasons revealed that rehabilitation considerations had been counted twice: once in reducing the head sentence and again as a separate justification for ordering periodic detention rather than full-time imprisonment. This "double-counting" resulted in a sentence that was manifestly inadequate.

The Court noted that the objective seriousness of robbery in company is significant, and periodic detention was not an appropriate outcome on the facts. The Court drew support from R v Bolder and Zaphir [2008] NSWCCA 222, in which a similar Crown appeal against periodic detention for robbery in company had been allowed.

Applying the principle of double jeopardy, the Court imposed a sentence somewhat less than would have been appropriate at first instance. The finding of "special circumstances" (which allows the balance of the sentence after release on parole to be extended beyond the standard ratio) was maintained.

Orders Made

  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • Respondent sentenced to a non-parole period of 12 months, commencing 6 January 2009 and expiring 5 January 2010, with release to parole on that date; total term of 2 years imprisonment expiring 5 January 2011 (taking into account the Form 1 matters)

Key Takeaways

  • A sentence of periodic detention for robbery in company was held manifestly inadequate where the objective seriousness of the offence was not adequately reflected, consistent with the Henry guideline judgment.
  • "Double-counting" occurs where a mitigating factor, such as rehabilitation prospects, is used both to reduce the head sentence and then again as a standalone reason to order a less restrictive mode of custody; the Court of Criminal Appeal confirmed this constitutes identifiable sentencing error.
  • Where error is established on a Crown appeal, the double jeopardy principle operates to produce a sentence somewhat below what the court would otherwise have imposed at first instance.
  • The Court of Criminal Appeal confirmed it retains a residual discretion not to intervene even where error is established, but found no basis to exercise that discretion on these facts.
  • Maintenance of a "special circumstances" finding on resentencing remained available even after the appeal was allowed and a full-time custodial sentence substituted.

Legislation and Cases Referenced

Cases Cited:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on robbery)
- R v Bolder and Zaphir [2008] NSWCCA 222
- R v Wall [2002] NSWCCA 42 (principles governing Crown appeals)
- Postiglione v The Queen (1997) 189 CLR 295
- R v Douar (2005) 159 A Crim R 154
- R v Goundar (2001) 127 A Crim R 331
- R v Govinden (1999) 106 A Crim R 314
- R v Murchie (1999) 108 A Crim R 482