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Court of Criminal Appeal 17 December 2010

MW v R

[2010] NSWCCA 324

Assault & violenceTheft & property
CRIMINAL LAW PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON AGGRAVATED ROBBERY WITH WOUNDING CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: MW v R [2010] NSWCCA 324
Court: NSW Court of Criminal Appeal
Date: 17 December 2010
Judge(s): Simpson J (primary judgment); Blanch J (agreeing, with additional comments); Garling J (agreeing)

Background

The applicant pleaded guilty to aggravated robbery with wounding arising from an incident at Stanmore Railway Station in February 2006. He was one of a group of men who attacked a 28-year-old victim, demanding his wallet. During the attack, the victim was struck with a rock and punched repeatedly. The applicant took the victim's mobile phone and wallet containing approximately $280 cash and personal items. The victim suffered lacerations, bruising, and lasting psychological harm. At the time of the offence, the applicant was 17 years and 8 months old.

The applicant was not sentenced on this charge until January 2010, nearly four years after the offence. In the intervening period, he was charged with a separate assault offence, convicted in absentia in the Local Court, and arrested in October 2009 on outstanding bench warrants for both matters. The sentencing history was, as the court described it, marked by considerable complications and errors at various stages.

Williams DCJ in the District Court sentenced the applicant in January 2010 to 3 years and 3 months imprisonment, with a non-parole period of 1 year and 9 months, partially accumulated on the Local Court sentence for the assault offence. The applicant sought leave to appeal, contending the sentence was manifestly excessive. The Crown also accepted that independent errors in the sentencing process required re-sentencing regardless of the manifest excess ground.

  • Whether the District Court judge correctly calculated the commencement date for the sentence, given the Local Court's failure to backdate the earlier assault sentence to account for time already served in custody
  • Whether the accumulation and commencement date of the District Court sentence properly reflected the actual custodial history
  • Whether the sentencing judge gave adequate weight to the applicant's voluntary disclosure of the offence to police, engaging the principles in R v Ellis
  • Whether the applicant's Aboriginal background was properly taken into account under the principles in R v Fernando
  • Whether sufficient weight was given to the applicant's youth at the time of offending and his steps toward rehabilitation
  • Whether the delay between the offence and sentencing was properly reflected in the sentence

Decision

Simpson J identified several compounding errors in the sentencing process. The Local Court magistrate failed to backdate the assault sentence to account for approximately two months and 23 days the applicant had served in custody before being granted bail in 2007. Had that period been properly credited, the assault sentence would have commenced in late July 2009 rather than October 2009. Williams DCJ then accumulated the present sentence on the erroneously calculated Local Court sentence, meaning the commencement date for the District Court sentence was itself displaced by the same error.

On the manifest excess ground, the Court of Criminal Appeal found that the sentencing judge had not adequately applied the Ellis principles. The applicant had voluntarily disclosed his involvement in the robbery to police when arrested for a separate matter, and had provided detailed admissions after obtaining legal advice. That voluntary disclosure, before any charge had been laid for the robbery, entitled the applicant to a meaningful reduction in sentence beyond the ordinary discount for a plea of guilty.

The Court also found that the Fernando principles, which recognise the relevance of an offender's Aboriginal background and the particular social disadvantages that may bear on offending, had not been sufficiently applied. The applicant's youth at the time of the offending, the lengthy delay before sentencing, and his steps toward rehabilitation were further factors that warranted greater mitigation than the District Court allowed. Taking all these matters together, Simpson J concluded that a greater reduction in sentence was warranted.

Blanch J agreed with Simpson J and added a note about the Tribal Warrior Association Mentoring Program, an Aboriginal-led program operating in partnership with Redfern Police that reported an 80% reduction in young Aboriginal men charged with robbery in 2009. His Honour recommended that on release to parole, the applicant be referred to that program. Garling J agreed with Simpson J without further comment.

Orders Made

  • Leave to appeal granted; the appeal allowed; the sentence imposed on 15 January 2010 quashed
  • In lieu thereof, the applicant sentenced to imprisonment for 2 years and 9 months, commencing 25 August 2009 and expiring 24 May 2012, comprising a non-parole period of 1 year and 6 months (expiring 24 February 2011) and a balance of term of 15 months
  • Direction that the applicant be released at the expiration of the non-parole period

Key Takeaways

  • Voluntary disclosure of an offence to police, before any charge is laid, engages the Ellis principles and entitles an offender to a sentencing reduction beyond the ordinary guilty plea discount. The Court of Criminal Appeal confirmed this entitlement was not adequately honoured by the sentencing judge here.
  • Under R v Fernando, an offender's Aboriginal background and associated social disadvantage are relevant sentencing considerations that must be genuinely engaged with, not merely acknowledged.
  • Where a prior sentence contains an error in the calculation of time served, any subsequent sentence accumulated upon it will inherit and compound that error. The Court corrected this by fixing a commencement date that properly reflected actual custody.
  • An offender's age at the time of the offence (here, 17 years and 8 months) remains a significant mitigating factor even when sentencing occurs years later, particularly in combination with evidence of subsequent rehabilitation.
  • Significant delay between the commission of an offence and sentencing is a factor that courts must weigh in determining the appropriate penalty, especially where the offender was a child at the time of the conduct.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 96 (aggravated robbery with wounding; maximum 25 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- R v Ellis (1986) 6 NSWLR 603 (voluntary disclosure by offender as mitigating factor)
- R v Fernando (1992) 76 A Crim R 58 (Aboriginal background as sentencing consideration)
- BP v R [2010] NSWCCA 159
- R v Hearne [1999] NSWSC 605; R v Hearne [2001] NSWCCA 37; 124 A Crim R 451
- R v Pham and Ly (1991) 55 A Crim R 128
- R v SDM [2001] NSWCCA 158; 51 NSWLR 530