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Court of Criminal Appeal 6 August 2010

Hawke v R

[2010] NSWCCA 172

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE ROBBERY IN COMPANY SENTENCE BACKDATED NO LESSER SENTENCE WARRANTED IN LAW.

Citation: Hawke v R [2010] NSWCCA 172
Court: NSW Court of Criminal Appeal
Date: 6 August 2010
Judge(s): McClellan CJ at CL, Hislop J, Barr AJ

Background

The appellant pleaded guilty in the District Court to robbery in company under s 97(1) of the Crimes Act 1900, carrying a maximum penalty of 20 years' imprisonment. A separate offence of assault occasioning actual bodily harm in company was taken into account on a Form 1 (a mechanism allowing related charges to be considered at sentencing without a separate conviction). The offending arose from a late-night confrontation in which a group followed a victim into a street, assaulted him, and stole his wallet.

The District Court sentenced the appellant to an 18-month non-parole period commencing 5 June 2009, with a balance of term of 18 months. The appellant sought leave to appeal on five grounds, challenging the sentencing judge's treatment of aggravating factors and the commencement date of the sentence.

  • Whether the sentencing judge erred by treating the use of actual violence as an aggravating circumstance, contrary to the principle in R v De Simoni that a court cannot aggravate a sentence on the basis of circumstances that would support a conviction for a more serious offence
  • Whether the sentencing judge erred in relying on the appellant's prior criminal record as an aggravating factor without sufficiently explaining how that record was taken into account
  • Whether the sentencing judge erred in treating substantial emotional harm to the victim as an aggravating factor, in the absence of evidence and by reference to an incorrect standard of proof
  • Whether the sentence should have been backdated to the date the appellant was first taken into custody referable to the subject offence
  • Whether totality principles required the sentence to be further backdated to account for an earlier sentence the appellant had been serving

Decision

The Court rejected grounds 1, 2, and 3. On the violence ground, Hislop J found that the sentencing judge's reference to actual violence was properly read as referring to the Form 1 assault offence, which the judge was required to take into account. There was no breach of the De Simoni principle and no double counting.

On the prior record ground, the Court found the sentencing judge had explained how the record was used, and had taken a notably benign view of it, consistent with the principles in Veen v The Queen (No 2). On the emotional harm ground, the portion of the judgment addressing that issue was not fully reproduced in the available text, but the Court's conclusion was that no error warranting intervention was established.

Ground 4, concerning the commencement date, succeeded. The Court found that the appellant had been held in custody from 25 May 2009 solely in relation to the subject offence, and that no exceptional circumstances existed to justify a departure from the ordinary rule requiring the sentence to be backdated to that date. The sentencing judge's failure to backdate accordingly was an error.

The Court declined to disturb the sentencing judge's refusal to backdate further to 22 April 2009 on totality grounds. The judge had considered and rejected that submission, and the Court found no error in that exercise of discretion. Apart from the commencement date, the sentence itself was not considered warranting reduction.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence quashed and replaced with imprisonment for a non-parole period of 18 months commencing 25 May 2009 and expiring 24 November 2010, with a balance of term of 18 months expiring 24 May 2012
  • Direction that the appellant be released on parole at the end of the non-parole period (24 November 2010)

Key Takeaways

  • Under R v Close and subsequent authority, a sentencing court must ordinarily backdate a sentence to the date an offender was first held in custody solely in connection with the offence being sentenced, absent exceptional circumstances.
  • A reference to "actual violence" as an aggravating factor does not necessarily breach the De Simoni principle where that reference can properly be attributed to a Form 1 offence taken into account at sentencing, rather than to an element of the principal offence.
  • Prior criminal record can be treated as an aggravating factor under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, provided the sentencing judge explains how it has been used and does not apply it in a manner inconsistent with Veen (No 2).
  • Correcting an error in the commencement date of a sentence does not automatically require a reduction in the length of the sentence. The Court of Criminal Appeal here adjusted the start date only, leaving the quantum of the sentence unchanged.
  • A sentencing judge retains discretion to decline to further backdate a sentence on totality grounds, and that refusal will not be disturbed on appeal where no error in the exercise of that discretion is demonstrated.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(b), (d), (g), 24, 50

Cases:
- R v De Simoni (1981) 147 CLR 383
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Close (1992) 31 NSWLR 743
- R v Cook [1999] NSWCCA 234
- McCabe v R [2006] NSWCCA 220; (2006) 164 A Crim R 344
- Lukenic v R [2008] NSWCCA 250
- Sultana v Regina [2007] NSWCCA 107