Citation: [2011] NSWCCA 52
Court: NSW Court of Criminal Appeal
Date: 1 April 2011
Judges: McClellan CJ at CL, Blanch J, Hoeben J
Background
The respondent pleaded guilty to assaulting a man with intent to rob him, contrary to s 94 of the Crimes Act 1900, which carries a maximum penalty of 14 years imprisonment. Her role was that of an accessory: she provided her half-brother with information about the victim's routine and drove him to and from the scene. She did not know he was armed with a claw hammer until immediately before the offence.
Her half-brother carried out the physical attack, striking the victim repeatedly to the head and face. He was subsequently convicted of intended armed robbery causing wounding and received a sentence with a non-parole period of five years and an additional term of seven years.
The sentencing judge imposed 500 hours of community service work along with supervision conditions, rather than a custodial sentence. The Crown appealed, contending that the sentencing judge misunderstood the available sentencing options under legislation that had recently commenced.
Legal Issues
- Whether the sentencing judge misunderstood the non-custodial and non-full-time custodial sentencing options available under the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010, which had recently commenced at the time of sentence.
- Whether, if re-sentencing was required, the same sentence imposed by the sentencing judge remained appropriate having regard to the objective seriousness of the offences and the respondent's subjective circumstances.
- How to assess the objective seriousness of the respondent's role as an accessory, particularly given she did not anticipate the use of a weapon.
- What weight to give the respondent's assistance to police and her rehabilitation prospects when determining the appropriate sentence.
Decision
The Court accepted that the sentencing judge had misunderstood aspects of the sentencing options introduced by the recently commenced legislation, which enlivened the Court's jurisdiction to re-sentence. However, the Court's task in re-sentencing required it to apply established principles, including giving appropriate weight to the respondent's rehabilitation prospects and the finding that she was "at the crossroads."
On the objective seriousness of the s 94 offence, the Court found that the respondent's culpability was significantly lower than that of her half-brother. She had not anticipated the weapon and had no opportunity to object once she saw it. The abuse of a position of trust and the degree of planning were aggravating factors, but the Court assessed the offence as in the low to mid range of objective seriousness for that category.
The Court placed considerable weight on the respondent's assistance to police. Her information in the same interview in which she sought to establish a false alibi effectively led to the arrest and conviction of her half-brother. The Court noted it was not clear how the sentencing judge had treated this assistance, and observed that prosecution of the co-offender may well have been difficult without it.
The Court concluded that, in the unusual circumstances of this case, a 500-hour community service order was lenient but not manifestly inadequate. The finding that the respondent was genuinely "at the crossroads" of rehabilitation, combined with the low range of objective seriousness of both the primary and Form 1 offences, supported maintaining the original sentence. The Court noted that a community service order represents a form of conditional liberty, and that 500 hours is the maximum period available.
Orders Made
- The Crown appeal was dismissed.
- The original sentence of 500 hours community service, supervision by the Probation and Parole Service, and development plan conditions was effectively confirmed upon re-sentencing.
Key Takeaways
- The Court of Criminal Appeal confirmed that a misunderstanding by a sentencing judge of recently introduced sentencing options can enliven the Crown's right of appeal under s 5D of the Criminal Appeal Act 1912, requiring the Court to re-sentence.
- In re-sentencing, a finding that an offender is genuinely "at the crossroads" of rehabilitation can be a significant factor capable of supporting a non-custodial sentence even for a serious offence.
- Assessing an accessory's objective culpability requires close attention to the actual scope of their participation: where a participant did not anticipate that a co-offender would be armed, that fact bears materially on the seriousness of their role.
- A community service order of 500 hours constitutes conditional liberty and, depending on circumstances, may not be manifestly inadequate even for an offence carrying a 14-year maximum, where objective seriousness is assessed in the low range and subjective circumstances are compelling.
- Substantial assistance provided to police in the investigation or prosecution of a co-offender is a distinct mitigating factor, and a sentencing court should address it expressly rather than leave its treatment uncertain in the reasons for sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 94, 319
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 8, 9, 90
- Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW)
Cases:
- R v Cicekdag [2004] NSWCCA 357
- R v Douar (2005) 159 A Crim R 154
- Regina v Hamieh [2010] NSWCCA 189
- R v Henry (1999) 46 NSWLR 346
- R v JW [2010] NSWCCA 49
- R v Osenkowski (1982) 30 SASR 212
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Regina v Zamagias [2002] NSWCCA 17