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Court of Criminal Appeal 11 February 2013

Hart v R

[2013] NSWCCA 13

Assault & violenceDrugsFirearms & weapons
APPEAL

Citation: Hart v R [2013] NSWCCA 13
Court: Court of Criminal Appeal, NSW
Date: 11 February 2013
Judges: Simpson J, Johnson J, Grove AJ

Background

The applicant pleaded guilty in the Sydney District Court to robbery whilst armed with a dangerous weapon. The offence involved an early-morning armed robbery of a service station console operator, during which the applicant produced a taser, activated it to demonstrate its capability, and demanded cash. A Form 1 charge of possessing a restricted substance (six Xanax tablets) was also taken into account.

Garling DCJ sentenced the applicant to a non-parole period of 2 years and 8 months, with a balance term of 1 year and 10 months. This reflected a 25 per cent discount for an early guilty plea, applied to an assessed total term of 6 years. The maximum penalty for the offence was 25 years' imprisonment.

The applicant sought leave to appeal against sentence, arguing that the sentencing judge had failed to properly consider his prospects of rehabilitation and likelihood of re-offending.

  • Whether the sentencing judge failed to have proper regard to the applicant's prospects of rehabilitation and likelihood of re-offending
  • Whether the sentencing judge impermissibly found that the applicant had poor rehabilitation prospects without identifying a cogent basis for that conclusion
  • Whether the available evidence established good prospects of rehabilitation as a matter of fact

Decision

Grove AJ (with whom Simpson J and Johnson J agreed) addressed three limbs of the reformulated ground of appeal. On the third limb, the court found that the sentencing judge made no express finding either way on rehabilitation prospects. Remarks made during exchanges with counsel did not constitute findings, and the context of those exchanges was consistent with the judge's decision not to make a positive finding in either direction.

The court rejected the contention that Garling DCJ had positively found poor rehabilitation prospects. Nothing in the remarks on sentence supported that reading. The judge had simply declined to make a positive finding of good prospects.

Turning to the core factual question, the court applied the framework from R v Elyard [2006] NSWCCA 43, examining past conduct, professional opinion, and the applicant's own evidence. The applicant's history of extensive poly-substance abuse from age 14, his criminal conduct to fund his drug dependence, and his deeply troubled background were all acknowledged. However, neither the pre-sentence report nor the forensic psychology report from Dr Watson-Munro offered a forecast of good rehabilitation prospects. Both reports referred only to what work might "enhance" prospects, falling short of a positive prediction.

The applicant's own evidence provided little additional support. His stated intention to attend therapy was qualified with uncertainty ("maybe, I don't know"), and he offered no explanation for how he came to have a taser. The court concluded that the totality of evidence fell far short of proving good rehabilitation prospects, and no error by the sentencing judge was established. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's conclusions must be derived from the formal remarks on sentence, not from exchanges with counsel during submissions.
  • No error was established merely because a sentencing judge declined to make a positive finding of good rehabilitation prospects. Declining to find good prospects is distinct from finding poor prospects.
  • The framework from R v Elyard [2006] NSWCCA 43 requires rehabilitation prospects to be assessed across three categories: past conduct and behaviour, professional opinion, and the offender's own expressions of intention.
  • Professional reports that describe what therapeutic work might "enhance" future prospects do not, without more, amount to evidence proving good prospects of rehabilitation as a matter of fact.
  • A sentence of 4 years and 6 months (after the 25 per cent guilty plea discount) for armed robbery with a taser, on an offender with a near-clean prior record and significant subjective circumstances, was treated as within the range of sound sentencing discretion and was characterised as apparently lenient.

Legislation and Cases Referenced

Cases:
- R v Elyard [2006] NSWCCA 43

Legislation:
- No specific legislation was cited in the provided text (the maximum penalty of 25 years for robbery whilst armed with a dangerous weapon derives from the Crimes Act 1900 (NSW), though this was not expressly referenced in the judgment extract)