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18
Court of Criminal Appeal 20 December 2013

CM v R

[2013] NSWCCA 341

Assault & violenceTheft & property

Citation: CM v R [2013] NSWCCA 341
Court: NSW Court of Criminal Appeal
Date: 20 December 2013
Judges: Ward JA, Harrison J, R A Hulme J (judgment by R A Hulme J, with Ward JA and Harrison J agreeing)

Background

The applicant had pleaded guilty to one charge of armed robbery and was found guilty at trial of two further armed robberies, one robbery, and one attempted robbery. All five offences occurred between April and October 2010 in the Hunter region of New South Wales. The applicant used a toy pistol (modified to appear real), concealed his face with caps and glasses, and attached stolen number plates to his car to disguise his movements.

The District Court at Newcastle sentenced the applicant in October 2012 to a total effective sentence of nine years with a minimum custodial period of seven years, commencing 20 October 2010. That structure involved a series of accumulated individual sentences.

The applicant sought leave to appeal to the Court of Criminal Appeal, raising four grounds directed at the overall length of the sentence and the way in which particular discounts had been applied.

  • Whether the sentencing judge erred by applying the 20 per cent discount for assistance to authorities only to the fifth offence (the General Roberts Hotel armed robbery) rather than to all offences
  • Whether the sentence imposed for the fifth offence was manifestly excessive
  • Whether the sentencing judge failed to give practical effect to a finding of special circumstances, and whether the total effective non-parole period exceeded the statutory ratio
  • Whether the total sentence and non-parole period were manifestly excessive overall

Decision

The Court upheld Ground 1, finding that the sentencing judge should have applied the discount for assistance to authorities across all five charges, not just the fifth. The Court noted there was no reason to confine that discount to a single offence: the assistance was a subjective circumstance of the applicant generally, and its effect should have been felt across the sentencing exercise as a whole.

The Court also upheld Ground 3. A finding of special circumstances (which permits a departure from the standard one-third ratio between non-parole period and total sentence) had been made, but the individual and accumulated sentences were structured in a way that failed to give that finding practical effect. The total effective non-parole period as imposed exceeded the statutory ratio, which was an error.

The Court rejected Ground 2, finding the sentence for the fifth offence was not manifestly excessive when considered individually. Ground 4, challenging the overall total as manifestly excessive, was also rejected. The reduction required arose from the two identified errors rather than from any view that the original total was disproportionate to the overall criminality.

Because re-sentencing was required, the Court applied the aggregate sentencing provisions under s 53A of the Crimes (Sentencing Procedure) Act. The individual sentences for offences one to four were each reduced by 20 per cent to reflect the assistance discount. The Court noted that had aggregate sentencing been used in the District Court, the Ground 3 error would more likely have been apparent at first instance.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed in the District Court quashed and replaced with an aggregate sentence of 8 years 9 months, with a non-parole period of 6 years, dating from 20 October 2010
  • Earliest eligible parole date: 20 October 2016

Key Takeaways

  • A discount for assistance to authorities is a subjective circumstance personal to the offender and, absent a specific reason to confine it, should be applied across all offences being sentenced rather than to a single charge only.
  • Where a sentencing court makes a finding of special circumstances, that finding must be given genuine practical effect in the resulting sentence structure; a finding that does not alter the ratio between the non-parole period and total sentence is an error.
  • The Court of Criminal Appeal confirmed that mathematical precision is not required when a discount is applied across accumulated sentences, but proportionality must be maintained.
  • Use of the aggregate sentencing provisions under s 53A of the Crimes (Sentencing Procedure) Act is more likely to expose structural errors in the relationship between individual non-parole periods and the overall custodial term.
  • Offences involving a toy firearm modified to appear real, planning through the theft and use of false number plates, and threats made to vulnerable victims (including a 16-year-old trainee and a 74-year-old postmaster) were treated as objectively serious, even where no actual firearm was involved.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 94 (robbery, maximum 14 years) and s 97(1) (armed robbery, maximum 20 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A (aggregate sentencing)

Cases: No cases were cited in the portions of the judgment provided.