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Court of Criminal Appeal 16 February 2011

Regina v Field

[2011] NSWCCA 13

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE APPEAL BY CROWN ROBBERY ARMED WITH AN OFFENSIVE WEAPON PAROLE PERIOD

Citation: Regina v Field [2011] NSWCCA 13
Court: NSW Court of Criminal Appeal
Date: 16 February 2011
Judges: McClellan CJ at CL, Hall J, Garling J (judgment delivered by Garling J)

Background

The respondent pleaded guilty to one count of robbery armed with an offensive weapon under s 97(1) of the Crimes Act 1900, following an incident on 22 January 2010. Armed with a shotgun (owned by a co-offender who remained at large), the respondent entered a woman's home in Rosemeadow and, in the presence of her 10-year-old daughter, demanded money and drugs before taking a mobile phone and a packet of cigarettes.

The sentencing judge in the District Court imposed a total sentence of 3 years and 9 months imprisonment with a non-parole period of 2 years. The respondent had been in custody since his arrest on 8 February 2010. The sentencing judge took into account significant subjective factors, including a diagnosis of schizophrenia and mild intellectual impairment, a history of childhood abuse, intoxication at the time of the offence, and the respondent's early guilty plea.

The Crown appealed under s 5D of the Criminal Appeal Act 1912, raising six grounds. It argued that the sentence was the product of multiple legal errors and was, in any event, manifestly inadequate.

  • Whether a sentencing judge is required to determine "objective seriousness" for an offence that carries no standard non-parole period
  • Whether the sentencing judge failed to give adequate weight to personal deterrence
  • Whether the finding of special circumstances (justifying a longer than usual parole period) was in error
  • Whether concessions made by the Crown at the sentencing hearing could be revisited on appeal
  • Whether the sentence was manifestly inadequate overall

Decision

Objective seriousness. The Court of Criminal Appeal confirmed that a formal finding of "objective seriousness" is not a mandatory step when sentencing for an offence that carries no standard non-parole period. Such a requirement applies only where a standard non-parole period exists. The relevant guideline judgment, R v Henry, provides the applicable framework for offences under s 97(1), and the sentencing judge properly applied it.

Personal deterrence. The Court found no error in the sentencing judge's approach to personal deterrence. The respondent's psychological profile, including his intellectual impairment and mental illness, was a legitimate basis for moderating the weight given to this factor. The sentencing remarks indicated the judge was aware of the respondent's prior offending and addressed it appropriately.

Special circumstances. The Court accepted that the finding of special circumstances was open on the evidence. The respondent's intellectual impairment, mental illness, and limited experience of custody together provided a proper basis for structuring the sentence with an extended parole period to facilitate supervision and rehabilitation.

Crown concessions. At the original sentencing hearing, the Crown made concessions regarding the objective features of the offence. The Court held that a sentencing judge is entitled to rely on such concessions as properly made, and that it would be neither fair nor in the interests of justice to permit the Crown to resile from those concessions on appeal. This ground was rejected accordingly.

Manifest inadequacy. Applying the principles in Hili v The Queen; Jones v The Queen [2010] HCA 45, the Court noted that appellate intervention on this ground requires more than a marked difference from other sentences. While the sentence sat at the lower end of the appropriate range, the Court was not satisfied that it crossed the threshold of manifest inadequacy in the particular circumstances of this case.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A formal assessment of "objective seriousness" is not a mandatory sentencing step for offences that carry no standard non-parole period. The Court of Criminal Appeal confirmed that this obligation is confined to offences for which a standard non-parole period is prescribed.
  • Where the Crown makes concessions at a sentencing hearing, a sentencing judge is entitled to treat them as properly made. The Court held that the Crown cannot revisit those concessions on appeal, and that fairness and the interests of justice required the Crown to be held to them.
  • Intellectual impairment and mental illness are legitimate factors that can reduce the weight given to personal deterrence, and can also support a finding of special circumstances justifying an extended supervision period on parole.
  • In dismissing the manifest inadequacy ground, the Court reiterated the Hili principle: appellate intervention requires a conclusion that some misapplication of principle must have occurred, not merely that the sentence was lower than other sentences imposed in comparable cases.
  • Under the R v Henry guideline, sentencing outcomes for s 97(1) offences vary widely depending on the particular facts. A sentence at the lower end of the guideline range is not automatically inadequate where significant subjective factors are established.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW)

Cases:
- R v Henry (1999) 46 NSWLR 346
- Hili v The Queen; Jones v The Queen [2010] HCA 45
- Markarian v The Queen (2005) 228 CLR 357
- R v Thomson (2000) 49 NSWLR 383
- R v JW [2010] NSWCCA 49
- Georgopolous v The Queen [2010] NSWCCA 246
- Sirell v The Queen [2009] NSWCCA 286