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Court of Criminal Appeal 11 May 2011

Osborne v Regina

[2011] NSWCCA 112

Assault & violenceTheft & property
CRIMINAL LAW APPEAL SENTENCING ROBBERY REPEAT OFFENDING WHETHER SENTENCES MANIFESTLY EXCESSIVE

Citation: Osborne v Regina [2011] NSWCCA 112
Court: NSW Court of Criminal Appeal
Date: 11 May 2011
Judges: Johnson J, Hall J, Price J

Background

The appellant was convicted by a jury in the District Court at Newcastle on six counts of robbery under s 94 of the Crimes Act 1900, arising from four armed robberies of building societies across the Hunter and Central Coast regions between July 2006 and June 2007. In each incident, he approached tellers with a plastic shopping bag and demanded money, conducting himself in a notably calm and controlled manner. A total of approximately $21,400 was taken across the four robberies.

Coolahan DCJ sentenced the appellant to a total effective term of 6 years 6 months imprisonment, with a non-parole period of 4 years. The individual sentences were structured with partial accumulation across the six counts, with the lengthiest sentence of 5 years (with a 2 years 6 months non-parole period) imposed for the final offence.

The appellant, who was self-represented on appeal, sought leave to appeal on the sole ground that the total sentence was manifestly excessive.

  • Whether the total effective sentence of 6 years 6 months was manifestly excessive in the sense of being unreasonable or plainly unjust
  • Whether the sentencing judge appropriately weighed the relevant aggravating factors, including the appellant's criminal history and his status on conditional liberty during some of the offences

Decision

Price J (with Johnson and Hall JJ agreeing) identified the applicable test from Markarian v The Queen (2005) 228 CLR 357: to succeed on a ground of manifest excess, an applicant must demonstrate that the sentence was unreasonable or plainly unjust. The Court found the appellant fell well short of that threshold.

The sentencing judge had identified several aggravating factors: the vulnerability of the tellers, the degree of planning involved in the offences, and the appellant's status on conditional liberty at the time of most of the robberies. Although no weapons were produced and no explicit threats of violence were made, the implicit threat inherent in demanding money from tellers placed them in genuine fear. Two victim impact statements provided direct evidence of the harm caused.

Price J reviewed each sentence individually and found no error in the approach taken. The concurrent sentences for counts 1 to 5 were described as ones that "could hardly be described as being excessive," and the sentence for the final count, while nominally 5 years, resulted in only an additional 8 months of mandatory incarceration beyond what had already been imposed. The overall structure appropriately reflected the principles of personal and general deterrence and the statutory requirement under s 3A(g) of the Crimes (Sentencing Procedure) Act 1999 to recognise harm done to victims.

The Court was satisfied the total sentence fell well within the legitimate exercise of the sentencing judge's discretion and dismissed the appeal accordingly.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that establishing manifest excess requires demonstrating a sentence is unreasonable or plainly unjust, not merely that a different outcome was open.
  • Robberies committed without weapons or explicit threats of violence can still attract serious sentences where an implicit threat is used to place victims in fear and where significant planning is evident.
  • Offending while on conditional liberty remains a meaningful aggravating factor, even where an offender's criminal history does not include prior offences of the same type.
  • Under s 3A(g) of the Crimes (Sentencing Procedure) Act 1999, recognition of harm to individual victims is a legitimate and distinct sentencing consideration, including where victim impact statements provide direct evidence of that harm.
  • A structured accumulation of sentences across multiple counts, where the overall non-parole period reflects special circumstances such as a first substantial period in custody, does not of itself give rise to manifest excess.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 94 (robbery, maximum 14 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A(g) (purposes of sentencing: recognition of harm to victims); s 44(2) (statutory ratio for non-parole periods)

Cases:
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- R v Fernando [2002] NSWCCA 28
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465