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Court of Criminal Appeal 28 November 2013

TAMMER-SPENCE, Jacob v R

[2013] NSWCCA 297

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE AGGREGATE SENTENCE YOUNG OFFENDER MANIFEST EXCESS DETERRENCE MAY STILL BE A FACTOR

Citation: TAMMER-SPENCE, Jacob v R [2013] NSWCCA 297
Court: Court of Criminal Appeal, NSW
Date: 28 November 2013
Judges: Latham J, Rothman J (principal judgment), Davies J

Background

The applicant, an 18-year-old man at the time of the offences, pleaded guilty to three counts of robbery and four counts of armed robbery. The offences formed part of a short but serious criminal spree centred on Town Hall Station in Sydney, in which the applicant lured men into private locations before robbing them, on several occasions producing a knife and threatening violence. A number of related offences, including detaining a victim for advantage and obtaining property by deception, were notified on a Form 1 (meaning they were taken into account at sentencing without separate conviction).

The applicant had a troubled background. He had been diagnosed with Oppositional Defiant Disorder at age 12, had experienced a serious sexual assault at 14, commenced drug use at age 11, and had made a suicide attempt in 2011. Expert reports from a psychologist and psychiatrist were tendered at sentence. The sentencing judge described him as "a markedly disturbed young man" and found special circumstances warranting an extended parole period to allow for rehabilitation.

The sentencing judge imposed an aggregate sentence of six years' imprisonment with a non-parole period of three years and six months, allowing a 25% discount for the utilitarian value of the guilty pleas. The applicant sought leave to appeal, arguing the sentence was infected by legal error and was manifestly excessive.

  • Whether the sentencing judge erred by treating deterrence as a material factor in sentencing a young offender
  • Whether the sentencing judge erred in finding that the applicant, described as "a markedly disturbed young man," ought to have taken greater responsibility in seeking psychological help
  • Whether the aggregate sentence of six years' imprisonment was manifestly excessive

Decision

The Court of Criminal Appeal (Rothman J, with Latham and Davies JJ agreeing) granted leave to appeal but dismissed the appeal on all grounds.

On the deterrence ground, Rothman J acknowledged the established principle that retribution carries less weight, and rehabilitation carries more weight, when sentencing young offenders. However, the Court confirmed that deterrence does not disappear entirely as a sentencing consideration simply because an offender is young. The Court found no error in the manner in which the sentencing judge applied deterrence in this case.

On the second ground, the Court found that the sentencing judge had not impermissibly held the applicant's failure to seek help against him. Rather, the judge had acknowledged the applicant's significant psychological difficulties and had identified the need for counselling, including as the basis for a special circumstances finding. No appealable error was established.

On manifest excess, the Court conducted its own assessment of the indicative sentences and the aggregate. Noting that sentencing is an "intuitive synthesis" rather than a mathematical exercise, Rothman J found that each indicative sentence was within range and appropriately reflected the applicant's strong subjective circumstances. Given the number and seriousness of the offences, the vulnerability of the victims, and the need for some degree of accumulation, the aggregate sentence fell within the range available to the sentencing judge.

Orders Made

  • Leave to appeal sentence granted
  • Appeal dismissed

Key Takeaways

  • Deterrence remains a permissible sentencing consideration for young offenders, even though retribution carries less weight and rehabilitation carries greater weight in that context. The Court of Criminal Appeal confirmed these principles operate on a spectrum rather than as absolute bars.

  • A sentencing judge's finding that a young offender had not sought available psychological help does not necessarily constitute error. The relevant question is whether that observation was used to improperly penalise the offender, rather than simply noting background circumstances.

  • Aggregate sentences are assessed as a whole through an intuitive synthesis rather than arithmetical accumulation. Appellate courts will not intervene merely because a different aggregate could have been reached from the same indicative sentences.

  • No error was established where the sentencing judge found special circumstances based on rehabilitation needs, applied a 25% utilitarian discount for guilty pleas, and expressly took into account a significantly troubled personal background including childhood trauma, drug dependence, and a diagnosed conduct disorder.

  • In dismissing the appeal, the Court reaffirmed that appellate intervention in sentencing requires identification of specific error or a sentence outside the available range, consistent with the principles in House v The King and subsequent High Court authorities.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(1), 94, 97(1), 114(1)(a), 192E(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases:
- BP v R [2010] NSWCCA 159
- Hili v The Queen; Jones v The Queen [2010] HCA 45
- House v The King [1936] HCA 40
- Johnson v The Queen [2004] HCA 15
- KT v R [2008] NSWCCA 51
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39
- R v AN [2005] NSWCCA 239
- R v Elliott [2006] NSWCCA 305
- R v Hearne [2001] NSWCCA 37
- R v MA [2004] NSWCCA 92
- R v Slade [2005] NZCA 19
- Veen v The Queen (No 2) [1988] HCA 14
- Weininger v The Queen [2003] HCA 14