AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
7
Court of Criminal Appeal 4 May 2011

Wu v R

[2011] NSWCCA 102

Also reported as 211 A Crim R 88
Theft & property
CRIMINAL LAW SENTENCE APPEAL NO PROSECUTORIAL DELAY WERE NOT APPLIED ERROR IN SENTENCING PRINCIPLE OFFENDER RE

Citation: Wu v R [2011] NSWCCA 102
Court: NSW Court of Criminal Appeal
Date: 4 May 2011
Judge(s): Giles JA at [1], RS Hulme J at [61], Adams J at [62]

Background

The applicant was convicted in 2010 of aggravated armed robbery, arson, and armed robbery arising from offences committed in September and October 2003. He was sentenced in June 2010 to an effective term of 6 years and 6 months imprisonment, with a non-parole period of 4 years.

The difficulty was that the applicant had already been sentenced in 2004 for a separate armed robbery committed on 12 November 2003, only weeks after the offences dealt with in 2010. That earlier sentence was for robbery in company at the National Australia Bank at Windsor and had been fully served. The 2010 sentencing judge did not factor that earlier sentence into the totality assessment when imposing the later sentences.

The applicant sought leave to appeal on the sole ground that the sentencing judge failed to give adequate weight to the earlier sentence in circumstances where all offences formed part of the same short course of criminal conduct.

  • Whether the totality principle, as articulated in R v Todd (1982) 2 NSWLR 517, required the 2010 sentencing judge to take the 2004 sentence into account when structuring the later sentences.
  • Whether the absence of prosecutorial delay, and the applicant's failure to volunteer his involvement in the earlier offences, displaced the obligation to apply totality principles.
  • Whether the sentencing judge's approach constituted an error in sentencing principle warranting resentencing.

Decision

The Court of Criminal Appeal, with Giles JA delivering the principal judgment, found that the 2010 sentencing judge had erred by failing to apply totality principles. The sentencing judge appeared to have begun the sentences at 25 June 2009 (the date of arrest) without adequately considering the relationship between the 2010 offences and the sentence already served for the 2004 National Australia Bank robbery, which was part of the same short course of criminal conduct.

The Court reaffirmed the principles in R v Todd: where an offender is sentenced for offences at different times, and those offences form part of the same course of criminality, the second sentencing court must consider what the overall sentencing would have been had all matters been dealt with together. This applies even where the delay in charging was not caused by prosecutorial error, interstate factors, or any conduct of the criminal justice system.

The Court also rejected any suggestion that the applicant's failure to volunteer his involvement in the 2003 offences forfeited his entitlement to totality considerations. That failure does not strip an offender of the protection that totality principles provide.

On resentencing, the Court accepted that the individual sentences were not themselves challenged as excessive. Applying totality, and taking into account the applicant's rehabilitation since the offences, the Court restructured the sentences to reduce the effective non-parole period from 4 years to 3 years.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence for the Collectors Tavern robbery (aggravated armed robbery) set aside and replaced with a non-parole period of 3 years commencing 25 June 2009, with a balance of term of 1 year and 6 months.
  • Sentence for the Buckland Hotel robbery (armed robbery) set aside and replaced with a non-parole period of 6 months commencing 25 December 2011, with a balance of term of 2 years and 6 months.
  • The applicant became eligible for release to parole on 24 June 2012.

Key Takeaways

  • The Court of Criminal Appeal confirmed that totality principles under R v Todd apply whenever a later sentencing court deals with offences that formed part of the same course of criminal conduct as an earlier sentenced offence, regardless of whether the gap in prosecution arose from prosecutorial delay, interstate factors, or other systemic causes.
  • An offender's failure to volunteer involvement in uncharged offences during an earlier sentencing does not deprive that offender of the benefit of totality considerations at a subsequent sentencing.
  • Where all offences could not be dealt with together, the second sentencing court must assess what overall sentence would have been appropriate had all matters been heard at once, and structure the later sentences accordingly.
  • Rehabilitation since the commission of the offences is a relevant consideration in applying totality principles at a later sentencing, even where a substantial period has elapsed.
  • In dismissing the utility of the original sentence structure, the Court found that the sentencing judge's failure to address totality was an error of principle sufficient to warrant intervention and resentencing by the appellate court.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 97(2), 195(1)(b)

Cases
- R v Todd (1982) 2 NSWLR 517
- Mill v The Queen (1988) 166 CLR 59
- Clements v R (1993) 68 A Crim R 167
- R v Shore (1992) 66 A Crim R 37
- R v Abookahled (CCA, 9 May 1991, unreported)
- Jackson v R (1988) 104 A Crim R 196
- Dair v Western Australia [2008] WASCA 72; (2008) 182 A Crim R 385
- R v Knott [2007] SASC 74; (2007) 169 A Crim R 291
- R v Bruce (1998) 71 SASR 536
- Dyer v R [2006] NSWCCA 274
- R v Kay [2004] NSWCCA 130
- R v Nahle [2007] NSWCCA 40
- R v Shorten [2005] NSWCCA 106
- R v Webster [2005] NSWCCA 110
- R v Virgona [2004] NSWCCA 415
- Thorpe v R [2010] NSWCCA 261