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Court of Criminal Appeal 20 December 2013

RD v R

[2013] NSWCCA 306

Assault & violenceTheft & property
CRIMINAL LAW ALLEGED ERROR NOT MADE OUT

Citation: RD v R [2013] NSWCCA 306
Court: NSW Court of Criminal Appeal
Date: 20 December 2013
Judge(s): Hoeben CJ at CL; Blanch J; R A Hulme J

Background

The applicant, a young man of Aboriginal background who was 17 years old at the time of the offending, pleaded guilty on the morning of his trial to three counts of aggravated robbery with a dangerous weapon under s 97(2) of the Crimes Act 1900. He also asked the court to take two further similar robberies into account on a Form 1. The offences involved a series of coordinated armed robberies at licensed premises in Sydney's inner west between July and September 2010, carried out with accomplices using replica firearms, knives, baseball bats and other weapons. Patrons and staff were terrorised, assembled on floors, and in one instance physically assaulted.

The applicant was sentenced by Charteris SC DCJ in the District Court to an aggregate term with a non-parole period of seven years. The sentences were structured with significant concurrency, reflecting the sentencing judge's consideration of the applicant's youth and severely deprived background, including the early death of his mother, periods in state care and juvenile detention, and serious drug dependency from a young age.

The applicant sought leave to appeal against sentence on a single ground: that the sentencing judge had erred by treating the fact that the offences were committed "in company" as an aggravating factor, when that circumstance was already an element of the charged offence under s 97(2), thereby engaging in impermissible double counting.

  • Whether the sentencing judge erred by treating the "in company" feature of the offending as an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, given that acting in company is already incorporated into the offence of aggravated robbery under s 97(2) of the Crimes Act 1900
  • Whether any such error, if established, warranted the imposition of a lesser sentence

Decision

The Court of Criminal Appeal (Hoeben CJ at CL, with Blanch J and Hulme J agreeing) granted leave to appeal but dismissed the appeal. The central question was whether the sentencing judge's reference to the "in company" feature of the offending constituted genuine double counting or simply an infelicitous choice of words when describing the overall seriousness of the offending.

Hoeben CJ at CL found, reading the remarks on sentence as a whole, that the sentencing judge had not in fact taken the "in company" element into account as a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999. Rather, the judge appeared to have used the word "aggravating" loosely to emphasise the totality of the seriousness of the conduct. The alleged error was not made out on this reading.

His Honour went on to consider the alternative position: even if the sentencing judge had erred in this respect, no lesser sentence was warranted in law. The offences were extremely serious, involving multiple victims, significant violence, coordinated planning, and the use of dangerous weapons. The structure of the sentences already reflected a generous application of totality principles, and the concurrent periods were plainly granted in recognition of the applicant's youth and deprived background.

The Court noted that the applicant was on conditional liberty at the time of the offences, had a significant prior criminal record including a prior conviction for robbery in company, and was only seven months short of his 18th birthday. Despite the mitigation available to him, the facts of the offending were of such gravity that the sentences could not be reduced.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's use of the word "aggravating" to describe an element already incorporated into the charged offence does not automatically constitute impermissible double counting; the remarks on sentence must be read as a whole to determine whether genuine double counting occurred.
  • Where a sentencing judge's language is ambiguous or "infelicitous," the Court of Criminal Appeal will examine the full sentencing remarks before concluding that a legal error was made.
  • In dismissing the appeal, the Court confirmed that even where a sentencing error might be established, an appellate court will not intervene if the facts are so serious that no lesser sentence is warranted in law.
  • Significant weight given to youth and a deprived background does not, of itself, require a reduction in sentence where the offending is highly organised, repeated, and accompanied by violence.
  • Generous application of totality principles, resulting in substantial concurrency across multiple serious and unrelated offences, can itself reflect appropriate mitigation for a young offender's circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(2) (aggravated robbery with a dangerous weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2) (aggravating factors); s 32 (Form 1 procedure)
- Children (Criminal Proceedings) Act 1987 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Hamze v R [2006] NSWCCA 36