Citation: Aguirre v R [2010] NSWCCA 115
Court: Court of Criminal Appeal, New South Wales
Date: 8 June 2010
Judge(s): James J, Simpson J, Barr AJ
Background
The appellant pleaded guilty in the District Court to three serious offences committed between February and June 2008: aggravated taking and driving of a motor vehicle without consent while armed (carjacking), and two counts of robbery in company while armed with a dangerous weapon. A further offence of aiding and abetting a similar carjacking was taken into account on a Form 1. The offences included an armed robbery of two Chubb security guards at Birrong railway station, netting over $6,000, and a second armed robbery of four security guards at Westfield Parramatta, yielding $161,000.
The sentencing judge in the District Court imposed fixed terms of four years (count 1) and six years (count 2), along with a head sentence of six years with a two-year non-parole period (count 3), producing an overall sentence of 12 years with a minimum term of eight years. The appellant was a young offender and had pleaded guilty to all counts.
The appellant sought leave to appeal against all three sentences on multiple grounds, including that the sentencing judge had failed to set a non-parole period for counts 1 and 2, had incorrectly applied certain aggravating factors, and that the sentences were manifestly excessive.
Legal Issues
- Whether the sentencing judge erred in imposing a fixed term rather than a non-parole period for count 1, an offence listed in the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act requiring a standard non-parole period
- Whether the sentencing judge erred in finding that the robbery at Birrong was committed "in the home of the victim" under s 21A(2)(eb)
- Whether the sentencing judge erred in finding that the offences involved gratuitous cruelty under s 21A(2)(f)
- Whether facts relevant to aggravation could be established beyond reasonable doubt by a victim impact statement alone
- Whether insufficient weight was given to the appellant's youth and immaturity
- Whether the individual sentences and overall sentence were manifestly excessive
Decision
The Court found that the sentencing judge committed a legal error on count 1 by imposing a fixed term of four years rather than a sentence that included a distinct non-parole period and balance of term. Count 1 was an offence to which a standard non-parole period applied under the Crimes (Sentencing Procedure) Act, and the imposition of a fixed term in that context was not open. Leave to appeal was granted on that count and the sentence was re-structured accordingly.
The Court rejected the argument that the Birrong robbery was committed "in the home of the victim." The offence occurred at a railway station car park and not in any residential premises connected to either victim. This aggravating factor was therefore inapplicable.
On the question of gratuitous cruelty under s 21A(2)(f), the Court considered the evidence carefully. The Court also examined the extent to which a victim impact statement could prove facts beyond reasonable doubt, noting the limitations of that form of evidence for establishing aggravating circumstances.
Despite accepting those specific grounds, the Court found that the remaining sentences were within the proper exercise of the sentencing judge's discretion. The sentencing judge had considered the appellant's youth and immaturity, but had followed established authority that significant weight must be given to general deterrence in armed robbery cases even where the offender is young. The overall sentence was not manifestly excessive given the objective seriousness of the offences, all of which the sentencing judge found to be above the mid-range for offences of their kind.
Orders Made
- As to count 1: leave to appeal granted, appeal allowed, sentence quashed and replaced with a non-parole period of four years commencing 24 June 2008 and a balance of term of two years
- Otherwise: leave to appeal granted but appeal against sentence dismissed
Key Takeaways
- Under the Crimes (Sentencing Procedure) Act, where an offence appears in the Table establishing a standard non-parole period, the sentencing court is not free to impose a simple fixed term. Failure to set a distinct non-parole period and balance of term for such an offence constitutes a sentencing error.
- The aggravating factor that an offence was committed "in the home of the victim" under s 21A(2)(eb) requires a genuine connection to the victim's residential premises. A robbery at a railway station car park did not satisfy that requirement.
- A victim impact statement alone may be insufficient to prove aggravating circumstances beyond reasonable doubt, reflecting the evidentiary limitations of that form of material in the sentencing context.
- In dismissing most of the sentence appeal, the Court of Criminal Appeal confirmed that general deterrence retains significant weight in armed robbery sentencing, even when the offender is young, consistent with the approach in R v Sharma.
- Appellate review of a sentencing judge's assessment of objective seriousness remains confined to the principles in House v The King: the assessment must be plainly wrong before the Court of Criminal Appeal will intervene.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act (NSW), including s 21A(2)(d), s 21A(2)(eb), s 21A(2)(f), and Division 1A of Part 4 (standard non-parole periods)
- Crimes Act (NSW), ss 97(2), 154C(2)
- Criminal Appeal Act (NSW)
Cases:
- House v The King (1936) 55 CLR 499
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Sharma [2002] NSWCCA 142
- R v Johnson [2004] NSWCCA 76
- R v Slack [2004] NSWCCA 128
- R v Walker [2005] NSWCCA 109
- R v Wilson [2005] NSWCCA 219
- R v Thomas [2007] NSWCCA 269
- SGJ v R, KU v R [2008] NSWCCA 258
- McCullough v R [2009] NSWCCA 94
- Wright v R [2009] NSWCCA 3