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Court of Criminal Appeal 9 December 2010

Regina v Kelly

[2010] NSWCCA 259

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW FORM 1 MATTERS GLOBAL APPROACH HENRY GUIDELINES ACCUMULATION MENTAL CONDITION

Citation: Regina v Kelly [2010] NSWCCA 259
Court: NSW Court of Criminal Appeal
Date: 9 December 2010
Judge(s): McClellan CJ at CL, Kirby J, Hoeben J

Background

The respondent pleaded guilty in the Newcastle Local Court to five counts of robbery whilst armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900. All offences were committed within approximately one week in November 2008, and involved armed robberies at a private residence and several service stations, along with associated Form 1 matters including arson of a stolen vehicle and taking a motor vehicle without consent.

The respondent was sentenced in the District Court on 7 May 2010 by Ashford DCJ. The total sentence imposed was 5 years and 6 months imprisonment, with a non-parole period of 3 years and 6 months. The Crown appealed, contending that the sentencing judge had made a series of legal errors and that the sentences were manifestly inadequate.

Counsel for the respondent conceded error on the ground that the judge had failed to assess the objective gravity of each individual offence. It was also conceded that, at minimum in respect of Count 1, that error rendered the sentence manifestly inadequate. The respondent's counsel nonetheless urged the Court not to intervene, pointing to psychiatric evidence that had emerged after sentencing and indicating mental health difficulties more significant than any party had appreciated at the time.

  • Whether the sentencing judge erred by adopting a global approach to sentencing without separately assessing the objective gravity of each individual offence
  • Whether the judge erred in finding remorse as a mitigating factor when the evidence did not support that finding
  • Whether the judge erred in treating the respondent's mental condition as relevant to the objective seriousness of the offences, rather than to the subjective case
  • Whether the judge failed to identify as aggravating circumstances that the offences were committed in company, and that Count 1 occurred in a victim's home
  • Whether the sentences, individually and in totality, were manifestly inadequate
  • Whether the Court should exercise its discretion to intervene despite conceded error, given the psychiatric evidence

Decision

The Court of Criminal Appeal allowed the appeal and quashed all sentences imposed by the District Court. Kirby J (with whom McClellan CJ at CL and Hoeben J agreed) found that the sentencing judge had committed legal error by failing to assess the objective gravity of each offence individually, instead adopting a global approach. This failure meant that specific aggravating factors, including the commission of the offences in company and the invasion of a victim's home, were not properly identified or weighed.

The Court also found that the judge had erred in using the respondent's mental condition to reduce the objective seriousness of the offences. Mental condition is a subjective factor relevant to culpability and prospects of rehabilitation, not a lens through which to assess the gravity of the offending conduct itself. The Henry guidelines (from R v Henry & Ors [1999] NSWCCA 111) relevant to armed robbery were not properly applied at the individual offence level.

On the question of manifest inadequacy, the Court was satisfied that the sentences, both individually and in totality, fell well short of what the offending required. The Court declined to exercise its residual discretion to decline intervention. While acknowledging the respondent's youth, psychiatric difficulties, illiteracy, and issues with alcohol and drugs, the Court concluded that resentencing was necessary to reflect the true gravity of the conduct.

In resentencing, the Court applied appropriate accumulation across the five counts, structured to achieve a result that was just in totality. The total term of imprisonment was increased to 7 years and 6 months, with a non-parole period of 5 years. The Court noted that the non-parole period on Count 1 was adjusted below the ordinary ratio by reason of special circumstances, to allow for a longer period of supervision given the respondent's substantial mental health, drug, and alcohol needs.

Orders Made

  • Appeal allowed
  • Sentences imposed on 7 May 2010 quashed
  • Respondent resentenced as follows:
  • Count 5: Non-parole period of 3 years 6 months from 1 March 2009, expiring 31 August 2012; additional term of 2 years expiring 30 August 2014
  • Count 2: Non-parole period of 3 years from 1 September 2009, expiring 31 August 2012; additional term of 1 year expiring 30 August 2013
  • Count 3 (including Form 1 matter): Non-parole period of 3 years from 1 September 2009, expiring 31 August 2012; additional term of 1 year expiring 30 August 2013
  • Count 4 (including Form 1 matter): Non-parole period of 2 years 9 months from 1 March 2010, expiring 30 November 2012; additional term of 1 year expiring 30 November 2013
  • Count 1: Non-parole period of 3 years 6 months from 1 September 2010, expiring 28 February 2014; additional term of 2 years 6 months expiring 31 August 2016; eligible for parole on 28 February 2014

Key Takeaways

  • A sentencing court must assess the objective gravity of each individual offence separately; a global approach that bypasses this step constitutes legal error and may render resulting sentences manifestly inadequate.
  • Aggravating circumstances prescribed by legislation, such as offending in company or in a victim's home, must be expressly identified and weighed at sentencing; failure to do so is a distinct and reviewable error.
  • A defendant's mental condition is relevant to the subjective sentencing assessment (including culpability and rehabilitation prospects), but it does not reduce the objective seriousness of the offending conduct itself.
  • In dismissing the respondent's submission that the Court should exercise its discretion not to intervene, the Court of Criminal Appeal reaffirmed that conceded legal error in sentencing, combined with manifest inadequacy, will ordinarily require resentencing.
  • Special circumstances justifying a departure from the standard ratio of non-parole to additional term can be found where an offender's complex mental health, drug, and alcohol needs require an extended supervisory period upon release.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912
- Crimes Act 1900 (NSW), ss 97(1), 154A(1)(a), 203E(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
- Mulato v R [2006] NSWCCA 282
- R v Cage [2006] NSWCCA 304
- R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740
- Attorney General's Application No 1 of 2002 [2002] NSWCCA 518; 137 A Crim R 180
- R v Grube [2005] NSWCCA 140
- Eedens v R [2009] NSWCCA 254
- Georgopolous v R [2010] NSWCCA 246
- R v Hemsley [2004] NSWCCA 228
- R v Engert (1995) 84 A Crim R 67
- R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
- R v