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Court of Criminal Appeal 11 December 2013

BLOOMFIELD, Gary v R

[2013] NSWCCA 315

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL ROBBERY IN COMPANY ALLEGED MANIFEST EXCESS APPEAL DISMISSED

Citation: Bloomfield, Gary v R [2013] NSWCCA 315
Court: NSW Court of Criminal Appeal
Date: 11 December 2013
Judges: Latham J, Rothman J (principal judgment), Davies J

Background

The applicant pleaded guilty in the District Court to one count of robbery in company, contrary to s 97(1) of the Crimes Act 1900, which carries a maximum sentence of 20 years' imprisonment. The offence occurred on a train in June 2011, when the applicant and a co-accused robbed a 15-year-old student of $50, some change, a bank card, and cigarettes. The applicant told the victim he had a knife, though the sentencing judge found she could not be satisfied beyond reasonable doubt that a knife was actually present.

The applicant was 26 years old at the time of the offence and of Aboriginal descent. He had a significant criminal history, a long-standing substance abuse problem involving cannabis, heroin, and amphetamines, and had twice attempted residential rehabilitation without success. The sentencing judge assessed his prospects of rehabilitation as "extremely guarded" and the likelihood of reoffending as "high," while also noting the offence was spontaneous rather than planned.

The applicant was sentenced to a non-parole period of 3 years, 4 months, and 15 days, with a remainder of 13 months and 15 days, producing a head sentence of 4 years and 6 months. He sought leave to appeal, arguing the sentencing judge had misapplied the Henry guideline and that the sentence was manifestly excessive.

  • Whether the sentencing judge misapplied the guideline set out in R v Henry [1999] NSWCCA 111, including whether the judge double-counted the aggravating factor of acting in company
  • Whether the head sentence of 4 years and 6 months was manifestly excessive for this offence and offender

Decision

Ground 1: Misapplication of the Henry guidelines

Rothman J reviewed the Henry guideline, which was formulated for armed robbery and sets a typical sentencing range of four to five years for a defined set of common circumstances. The Court confirmed, following Murchie v R (1999), that the Henry guideline may also serve as a useful guide for robbery in company, since Parliament has prescribed the same maximum penalty for both offences. However, the guideline is not a rule or prescription, and failure to adhere to it is not itself a ground of appeal.

The Court found no error in the sentencing judge's application of the guideline. In particular, the contention that the judge double-counted the "in company" element by both applying the Henry framework and treating the presence of a co-offender as an aggravating feature was rejected. The guideline remains flexible, and the sentencing judge's approach was consistent with its proper use.

Ground 2: Manifest excess

Rothman J examined sentencing statistics from the Judicial Commission, noting some caution about their use. The judge observed that statistics risk becoming a self-fulfilling de facto range, displacing the maximum sentence and any applicable standard non-parole period as the proper anchors for sentencing. The Court also noted that most comparable cases in the statistics involved offenders under 21, making direct comparison with the 26-year-old applicant of limited value.

Rothman J found the sentence was within an available range and was not manifestly excessive. He reiterated that sentencing is an "intuitive process" with no single correct answer, and that even if a different judge might have imposed a lesser sentence, that alone does not establish manifest excess. The appeal was dismissed on both grounds.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Henry guideline for armed robbery applies equally as a guide to sentencing for robbery in company, given both offences carry the same maximum penalty, but it is not a binding prescription.
  • A sentencing judge's failure to adhere strictly to the Henry guideline does not, of itself, constitute a ground of appeal.
  • Sentencing statistics sourced from the Judicial Commission may be considered but carry an inherent risk of becoming a de facto range, and the Court cautioned that they must be used carefully to avoid displacing the maximum sentence as the primary sentencing reference point.
  • Offenders of different age groups are not readily comparable for sentence purposes, and caution is required when drawing analogies from cases involving young offenders.
  • Manifest excess is not established merely because another judge might have arrived at a lower sentence; the question is whether the sentence imposed fell outside the range reasonably available to the sentencing judge as a discretionary exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Murchie v R [1999] NSWCCA 424; (1999) 108 A Crim R 482
- Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
- R v Hemsley [2004] NSWCCA 228
- Tammer-Spence v R [2013] NSWCCA 297