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Court of Criminal Appeal 27 August 2010

COOK v REGINA

[2010] NSWCCA 191

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE FAILURE TO ASSESS OBJECTIVE SERIOUSNESS APPEAL REFUSED CRIMINAL LAW

Citation: Cook v Regina [2010] NSWCCA 191
Court: Court of Criminal Appeal, New South Wales
Date: 27 August 2010
Judge(s): Basten JA, Hall J, Price J

Background

The appellant pleaded guilty in the District Court at Lismore to one count of robbery with a dangerous weapon under s 97(2) of the Crimes Act 1900. The offence involved entering a club, vaulting a reception counter, and pointing what appeared to be a shotgun at two female employees while demanding and obtaining approximately $18,400 in cash from a safe. A related dealing-in-proceeds-of-crime offence was taken into account on a Form 1.

The sentencing judge, Black DCJ, imposed a total term of 8 years and 3 months, with a non-parole period of 5 years. A discount of 17.5% was applied for the guilty plea, and special circumstances were found on account of the appellant's age, drug addiction, and what the sentencing judge described as the "Fernando factors" (a reference to considerations relevant to offenders with disadvantaged backgrounds).

The appellant sought leave to appeal against that sentence, contending that the sentencing judge had committed two distinct errors.

  • Whether the sentencing judge failed to properly assess the objective seriousness of the offence, including by not conducting an adequate evaluative process under s 21A of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentence imposed was manifestly excessive, including by reference to Judicial Commission sentencing statistics

Decision

On the first ground, the Court of Criminal Appeal rejected the submission that the sentencing judge had failed to assess objective seriousness. The remarks on sentence recorded that the judge characterised the offence as "a very serious offence of its kind," noted that the victims had no reason to believe the weapon was unloaded, and treated their fear as part of the gravity of the offending. The sentencing judge also identified victim vulnerability (by reason of occupation) as an aggravating factor under s 21A(2)(l), and acknowledged the element of planning, even though he declined to classify it as a formal aggravating feature. The Court was satisfied that an adequate evaluative process had taken place.

On the second ground, the appellant relied on Judicial Commission statistics to argue the sentence sat at or beyond the top of the available range. The Court noted that, among the comparable cohort of 13 guilty-plea offenders aged 21 to 25 with Form 1 matters, three received head sentences equal to or greater than the appellant's, and three received the same non-parole period. The Court also reiterated that sentencing statistics must be approached with caution, and that they cannot of themselves establish manifest excess.

Taking into account the objective seriousness of the offence, the aggravating and mitigating factors, the appellant's criminal antecedents (including reoffending shortly after release from custody in Queensland), and the findings on special circumstances, the Court concluded the sentence was within the proper range of sentencing discretion. No error warranting intervention was established on either ground.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is not required to use any particular formula or label when assessing objective seriousness; it is sufficient that the remarks on sentence demonstrate an evaluative process has occurred.
  • Under s 21A of the Crimes (Sentencing Procedure) Act 1999, the impact of an offence on victims forms part of the gravity of the offending rather than a separate aggravating factor where it is an expected consequence of the crime.
  • Judicial Commission sentencing statistics are a tool to be approached with caution and cannot alone establish that a sentence is manifestly excessive, as confirmed by reference to Davis v Regina [2009] NSWCCA 279 and Williams v Regina [2010] NSWCCA 15.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a non-parole period constituting approximately 60% of the total term, combined with a finding of special circumstances, fell within the available range for a serious armed robbery involving a firearm, two vulnerable victims, and an offender with a recent prior record.
  • No error is established merely because a sentence appears towards the higher end of a statistical distribution; the court retains a broad discretion shaped by the specific facts and circumstances of the individual case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(2), 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases:
- Davis v Regina [2009] NSWCCA 279
- House v The King (1936) 55 CLR 499
- Mulato v Regina [2006] NSWCCA 282
- Regina v Henry (1999) 46 NSWLR 346
- Williams v Regina [2010] NSWCCA 15