Citation: Kinchela v Regina [2010] NSWCCA 167
Court: Court of Criminal Appeal, New South Wales
Date: 6 August 2010
Judge(s): Hodgson JA, Kirby J, Whealy J
Background
The appellant pleaded guilty in the Penrith District Court to five offences committed over a period of less than a week in late June and early July 2007. The offences included a robbery in company at a petrol station, an aggravated break, enter and steal, and three separate counts of motor vehicle theft. The robbery involved a sustained physical assault on a lone female console operator, who was punched, dragged, bound, and gagged before the offenders fled with cash, cigarettes, and personal property.
Knight DCJ sentenced the appellant to a partially accumulated effective sentence of six years imprisonment, comprising a non-parole period of three years and nine months. The sentencing judge took into account strong subjective factors, including the appellant's mental health history.
The appellant sought leave to appeal against the sentences, raising several grounds. The Crown also drew attention to a technical error in the sentence imposed for one count.
Legal Issues
- Whether sentencing the appellant on two counts with overlapping elements amounted to impermissible double punishment, even though the sentences were concurrent
- Whether the sentencing judge wrongly characterised the robbery as involving planning as an aggravating factor
- Whether the sentencing judge gave sufficient weight to the appellant's mental illness and other subjective matters
- Whether the overall sentence was manifestly excessive
- Whether the fixed term imposed on Count 3 (an aggravated break, enter and steal, which carries a standard non-parole period) was a sentencing error requiring correction
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all substantive grounds. Kirby J (with whom Hodgson JA and Whealy J agreed) found that no error had been demonstrated in the approach taken by the sentencing judge.
On the double punishment ground, the court considered the relevant principles relating to concurrent sentences for offences with overlapping elements. Imposing concurrent sentences on the two charges did not constitute double punishment in the circumstances.
On the planning aggravation ground, the court accepted that the robbery involved a degree of pre-meditation. The offenders had visited the service station, left, and then returned once other customers had departed, before carrying out a premeditated assault. The court found that the sentencing judge's characterisation of the conduct as involving planning was supported by the facts.
The court was also satisfied that the sentencing judge had properly weighed the appellant's mental health and subjective case. The effective sentence, including the partial accumulation between counts, was found to be within an appropriate range and not manifestly excessive. However, the Crown correctly identified that Count 3 had been sentenced as a fixed term when, as a standard non-parole period offence under the Crimes (Sentencing Procedure) Act 1999, a parole period was required to be specified. The court corrected that error by quashing the sentence on Count 3 and re-sentencing with a non-parole period and an additional term. The correction did not alter the total time to be served.
Orders Made
- Leave to appeal granted
- The appeal dismissed, except in respect of Count 3
- The sentence on Count 3 quashed and replaced with a non-parole period of 1 year 6 months commencing 17 July 2008 and expiring 16 January 2010, with an additional term of 6 months expiring 16 July 2010
Key Takeaways
- A sentence imposed as a fixed term on an offence that carries a standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 is a sentencing error, even where the overall term appears appropriate. The Court of Criminal Appeal corrected that error by re-sentencing on the affected count to reflect the required non-parole and additional term structure.
- Concurrent sentences imposed for two offences with overlapping elements do not automatically constitute double punishment. The court considered the structure of the sentences and found no impermissible double counting.
- Where offenders conduct a preliminary visit to a target location before returning to commit the principal offence, that conduct can properly support a finding of planning as an aggravating circumstance.
- In dismissing the manifestly excessive ground, the Court of Criminal Appeal confirmed that a strong subjective case, including significant mental illness, can legitimately moderate an otherwise serious sentence without rendering it appealable as insufficient.
- The guideline judgment in R v Henry (1999) 46 NSWLR 346 remains a relevant benchmark for sentencing in robbery in company cases. The sentencing court's reference to that authority was described as entirely appropriate.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 97(1), 112(2), 154F
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 45(1), 54B(2)
- Criminal Appeal Act 1912 (NSW)
- Criminal Code Act 1995 (Cth)
- Copyright Act 1968 (Cth)
Cases
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Mendez [2005] NSWCCA 246; (2005) 155 A Crim R 241
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Schembri v Regina [2010] NSWCCA 149
- Nahlous v R [2010] NSWCCA 58
- Thom v Regina [2009] NSWCCA 294
- Fahs v Regina [2007] NSWCCA 26
- R v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218
- R v Hemsley [2004] NSWCCA 228
- R v Majid [2010] NSWCCA 121
- R v Clarke [2009] NSWCCA 13
- R v Pearce (Court of Criminal Appeal, 18 December 1998, unreported)