Citation: Gary Wayne Lobsey v R [2012] NSWCCA 239
Court: Court of Criminal Appeal, NSW
Date: 21 November 2012
Judge(s): McClellan CJ at CL, Bellew J, Button J
Background
The applicant pleaded guilty in the Newcastle District Court to robbery inflicting grievous bodily harm under s 96 of the Crimes Act 1900, an offence carrying a maximum penalty of 25 years imprisonment. The offence occurred on New Year's Day 2009, when he snatched the handbag of a 73-year-old woman in a supermarket car park. When she resisted, he dragged her across a bitumen surface until the bag strap broke, causing her to fracture the neck of her left femur and require emergency total hip replacement surgery.
The sentencing judge imposed a non-parole period of 5 years with a total term of 7 years and 6 months imprisonment, commencing from the date of custody. The applicant sought leave to appeal, contending both that the sentence was manifestly excessive and that the sentencing judge had made factual findings that were not open on the evidence.
The application for an extension of time to file the notice of intention to seek leave to appeal was not opposed by the Crown.
Legal Issues
- Whether the sentencing judge's characterisation of the offence as a "vicious, cowardly attack" was open on the facts, given the applicant's stated lack of intent to cause injury
- Whether the total sentence of 7 years and 6 months imprisonment was manifestly excessive having regard to the objective seriousness of the offending, the applicant's criminal history, and the available mitigating factors
Decision
On Ground 2(b), Bellew J rejected the submission that describing the attack as "vicious" was overly emotive or inaccurate. The applicant's conduct, which involved grabbing the bag of an unsuspecting elderly woman, pulling her to the ground, and dragging her across a bitumen surface with sufficient force to break the bag strap and cause serious injury, properly fell within the meaning of cruel, harsh, and violent behaviour. Bellew J found that any conclusion to the contrary would ignore the reality of what occurred. Ground 2(a), relating to the cause of the victim's injuries, was not pressed at the hearing.
On Ground 1, the Court rejected the contention that the sentence was manifestly excessive. The applicant's characterisation of the offending as a "forceful bag snatch" was described as overly charitable and insufficiently recognisant of the objective seriousness of conduct that left an elderly victim with significant injuries. The Court noted that, while it must exercise care when drawing comparisons with other sentences or sentencing statistics, those comparisons were of limited assistance in the circumstances, particularly where some comparable cases involved different offences.
The Court identified the applicant's lengthy criminal history, which included prior offences of violence, as calling for a significant emphasis on specific deterrence. General deterrence and community protection were also relevant considerations. The mitigating factors were limited to the early guilty plea and the sentencing judge's acceptance of genuine contrition, both of which his Honour had properly accounted for. The Court was not persuaded the sentence was manifestly excessive, and dismissed both grounds.
Orders Made
- Time extended to file the notice of intention to seek leave to appeal
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that describing a robbery on an elderly victim as "vicious" was a legitimate characterisation where the conduct involved dragging the victim across a hard surface and causing serious injury, even where the offender did not intend that injury.
- A finding of lack of intent to injure does not preclude a sentencing court from finding gross recklessness and a complete lack of care as the basis for the harm caused.
- Where an offender has a criminal history that includes offences of violence, sentencing courts are entitled to give added prominence to specific deterrence as an objective of the sentence.
- Comparisons with other sentences and sentencing statistics must be approached with care, particularly where the cases involved are not for the same offence as the one being sentenced.
- Under s 96 of the Crimes Act 1900, a sentence of 7 years imprisonment with a non-parole period of 5 years for robbery inflicting grievous bodily harm on a vulnerable elderly victim was held not to be manifestly excessive on these facts.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 96 (robbery inflicting grievous bodily harm; maximum penalty 25 years imprisonment)
Cases
- Han v R [2009] NSWCCA 300
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520