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Court of Criminal Appeal 20 February 2014

R v Robinson

[2014] NSWCCA 12

Assault & violenceTheft & property
CRIMINAL LAW GROUNDS FOR INTERVENTION PROSECUTION APPEAL SENTENCE

Citation: R v Robinson [2014] NSWCCA 12
Court: Court of Criminal Appeal, New South Wales
Date: 20 February 2014
Judges: Basten JA at [1]; Hidden J at [68]; R S Hulme AJ at [72]

Background

The respondent was sentenced in the District Court at Campbelltown in June 2013 for breaking and entering a dwelling house in circumstances of special aggravation, contrary to s 112(3) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of seven years. The sentencing judge was also required to take into account a common assault on the Form 1.

The offending involved a pre-dawn home invasion by a group of five, targeting a house occupied by two young Vietnamese-Australian siblings. The respondent, the eldest member of the group at 26, armed himself with a hammer. During the invasion, he kicked a 19-year-old female occupant in the abdomen and struck her 16-year-old brother on the forehead with the hammer, causing a laceration. A co-offender also stabbed the brother in the shoulder during a struggle.

The sentencing judge imposed a non-parole period of two years and an additional term of two years and three months, totalling four years and three months. That sentence included a global discount of 40% for the utilitarian value of the guilty plea and for assistance provided to law enforcement authorities. The Director of Public Prosecutions appealed against the leniency of the sentence.

  • Whether the sentencing judge failed to have regard to the maximum penalty and the standard non-parole period
  • Whether the sentencing judge failed to account for the respondent's criminal history, including prior offences of dishonesty and personal violence
  • Whether the sentencing judge properly took into account the Form 1 assault offence
  • Whether the sentencing judge complied with s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when applying a discount for assistance to law enforcement authorities, including the requirement to state the unassisted penalty and to apportion discounts for past and future assistance separately
  • Whether the overall sentence was manifestly inadequate
  • Whether the Court should exercise its residual discretion to decline intervention despite establishing one or more grounds of appeal

Decision

The Court of Criminal Appeal allowed the appeal on the ground of manifest inadequacy, finding that the sentence failed to reflect the gravity of the principal offence and the Form 1 matter. Basten JA, with whom Hidden J and Hulme AJ agreed, found that the seriousness of the offending, described by the sentencing judge himself as a "sustained rampage into violence", was not adequately captured by a two-year non-parole period.

The Court also found that the sentencing judge had not complied with s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That provision requires the court, when reducing a sentence for assistance to law enforcement authorities, to state the penalty that would otherwise have been imposed and, where future assistance is involved, to apportion the reduction between past and future assistance. The sentencing judge applied a single undifferentiated 40% discount without making those distinctions.

On the residual discretion question, the Court noted that a Crown document presented at sentencing incorrectly stated that the offending did not occur while the respondent was on conditional liberty. Because the prosecutor did not correct this at the time, the Court declined to rely on that ground in allowing the appeal. However, it determined that the conditional liberty status was a relevant factor in resentencing. The Court also confirmed that the established inadequacy of the sentence meant there was no proper basis to exercise the residual discretion against intervention.

Hidden J was content to allow the appeal solely on manifest inadequacy, without resolving the additional grounds. He acknowledged the sentencing judge was entitled to give considerable weight to the respondent's subjective case but concluded that even with that allowance, the sentence could not stand.

Orders Made

  • The appeal was allowed and the sentence imposed in the District Court on 21 June 2013 was set aside.
  • The respondent was resentenced to a non-parole period of 3 years with an additional term of 2 years and 3 months, dating from 5 July 2012.
  • Eligibility for conditional release: 4 July 2015. Sentence expiry: 4 October 2017.

Key Takeaways

  • A sentencing judge's failure to comply with s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), specifically the requirement to state the unassisted penalty and to separately apportion any discount between past and future assistance to law enforcement, constituted an error capable of supporting a Crown appeal.
  • Where a Crown document presented at sentencing contained a material error and the prosecutor did not correct it, the Court of Criminal Appeal declined to allow the appeal on that specific ground, though the correct facts remained available for consideration on resentencing.
  • Manifest inadequacy was established where the non-parole period failed to reflect the objective gravity of a violent home invasion involving weapons, multiple victims, and significant physical harm, notwithstanding a substantial discount and favourable subjective features.
  • The residual discretion under s 5D of the Criminal Appeal Act 1912 (NSW) to decline intervention even where inadequacy is established was not available on these facts, the Court finding no sufficient basis to exercise it in the respondent's favour.
  • Sentencing comparisons drawn from earlier Crown appeal decisions are highly fact-specific; the Court confirmed that R v Dole and Nguyen [2010] NSWCCA 101, which involved a home invasion resulting in a non-parole period of two months, provided no guidance given the materially different facts of the present case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 21A, 22, 23, 44, 54A, 54B, 54D
- Criminal Appeal Act 1912 (NSW), ss 5D, 5DA

Cases
- Abbas v R [2013] NSWCCA 115
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Munda v Western Australia [2013] HCA 38; 87 ALJR 1035
- R v Amohanga and Rai [2005] NSWCCA 249; 155 A Crim R 202
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- R v Dole and Nguyen [2010] NSWCCA 101
- R v DW [2012] NSWCCA 66; 221 A Crim R 63
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- R v Moon [2000] NSWCCA 534; 117 A Crim R 497
- R v Osenkowski (1983) 30 SASR 212
- R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Western Australia v Munda [2012] WASCA 164; 43 WAR 137