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Court of Criminal Appeal 2 August 2013

Tuvunivono v R

[2013] NSWCCA 176

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING PAROLE PERIOD OR FULL TERM WHETHER ERROR REQUIRING INTERVENTION SENTENCE APPEAL ARMED ROBBERIES

Citation: Tuvunivono v R [2013] NSWCCA 176
Court: NSW Court of Criminal Appeal
Date: 2 August 2013
Judges: Basten JA at [1]; Price J at [16]; Campbell J at [76]

Background

The applicant pleaded guilty in the District Court to seven counts of armed robbery or attempted armed robbery on an indictment, with a further 14 offences (including 11 armed robberies) listed on a Form 1 to be taken into account on sentencing for the first count. The sentencing judge imposed fixed terms of imprisonment on counts 2 to 10, ranging from four years to five years, with a non-parole period of six years and four months plus an additional term of four years on count 1. A degree of accumulation was applied across all sentences, with the final sentence commencing one year and eight months after the first.

The applicant sought leave to appeal and leave to appeal out of time. He raised several grounds, including procedural unfairness in the denial of a guilty plea discount, an erroneous extension of the non-parole period on count 1, and that the individual sentences were manifestly excessive.

  • Whether the extension of time to appeal should be granted
  • Whether the applicant was denied a procedurally fair opportunity to receive a discount for his guilty pleas
  • Whether the non-parole period on count 1 was erroneously extended through a misapplication of the "special circumstances" finding
  • Whether the fixed term sentences imposed on counts 2 to 10 were manifestly excessive, specifically whether those fixed terms should be treated as equivalent to non-parole periods or full terms of imprisonment, and whether they fell within the range prescribed by the R v Henry guideline judgment

Decision

The Court granted leave to appeal on all sentences but, by majority (Price J and Campbell J), dismissed the appeal. The majority found no procedural unfairness in relation to the guilty plea discount, and concluded that the non-parole period on count 1 was not erroneously extended.

On the central issue of manifest excess, the majority held that the fixed terms imposed on counts 2 to 10 were intended by the sentencing judge as "head" (full) sentences, not non-parole periods, and that they fell squarely within the four-to-five-year range prescribed by the Henry guideline for armed robberies with the relevant common characteristics. Price J further reasoned that even if the fixed terms had been intended as non-parole periods, the resulting head sentences would not have been manifestly excessive given the applicant's repeated offending, which required substantial weight to be given to personal deterrence and community protection.

Basten JA dissented on ground 3. His Honour reasoned that a fixed term sentence must be understood as equivalent to a non-parole period, because it represents the minimum period the offender will serve for that specific offence. On that analysis, treating the fixed terms as full terms would have produced notional head sentences well beyond the Henry range, an outcome the sentencing judge could not have intended. Basten JA would have allowed the appeal on counts 2 to 10 and reduced each fixed term accordingly. Because this was a minority position, it did not alter the outcome.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A fixed term sentence is ordinarily to be treated as equivalent to a non-parole period, not a full term of imprisonment, because it represents the minimum period of custody the sentencing judge considers appropriate for that specific offence (per Basten JA, dissenting on this ground, citing Lipchin v R, Collier v R, and R v Dunn).
  • The majority of the Court of Criminal Appeal took a different view, finding that fixed terms imposed within the four-to-five-year range set by the Henry guideline could properly be understood as head sentences, and were not manifestly excessive on the facts.
  • Where a sentencing judge expressly applies the Henry guideline to armed robbery offences, the range of four to five years for a full term remains the relevant benchmark, and sentences within that range will not ordinarily be disturbed.
  • Repeated commission of armed robberies justifies substantial weight being given to personal deterrence and protection of the community under the principles in Veen v The Queen (No 2), even where individual sentences appear to sit at the higher end of a guideline range.
  • Under s 55(2) and (4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), periods of accumulation must be calculated by reference to the non-parole period of the sentence, or the fixed term where no non-parole period has been set.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 94, 97(1), 344A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 45, 53A, 55
- Pawnbrokers and Second-hand Dealers Act 1996 (NSW), s 24

Cases
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Lipchin v R [2013] NSWCCA 77
- Collier v R [2012] NSWCCA 213
- R v Dunn [2004] NSWCCA 346
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Power v The Queen [1974] HCA 26; 131 CLR 623
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327
- Fairbairn v R [2006] NSWCCA 337; (2006) 165 A Crim R 434
- Re Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Trujilo-Mesa v R [2010] NSWCCA 201