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21
Court of Criminal Appeal 18 July 2014

Hampton v R

[2014] NSWCCA 131

Also reported as (2014) 243 A Crim R 193
Assault & violenceTheft & property
CRIMINAL LAW SENTENCE RELEVANCE OF THAT ISSUE ON SENTENCE SENTENCE NEED FOR GENERAL DETERRENCE SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: Hampton v R [2014] NSWCCA 131
Court: NSW Court of Criminal Appeal
Date: 18 July 2014
Judges: Gleeson JA, Johnson J, Price J, Garling J, Bellew J

Background

The applicant pleaded guilty in the Local Court on 5 April 2013 to robbery in company (contrary to s 97(1) of the Crimes Act 1900) and stealing from a person (contrary to s 94 of the same Act). The offences arose from an incident on 23 August 2012 in which the applicant and an unknown co-offender followed two men off a bus at Tregear, punched one victim to the ground, threatened both with an object, and stole their wallets.

On 7 June 2013, the District Court sentenced the applicant to a total sentence of five years for the robbery in company charge (non-parole period of two years and six months), with a concurrent two-year fixed term for the stealing charge. Both sentences commenced on 3 February 2013.

The applicant sought leave to appeal on four grounds: that the sentencing judge failed to account for time spent in custody on an unrelated matter; that the line of authority on that issue was wrongly decided; that the totality principle was not properly applied; and that the principal sentence was manifestly excessive.

  • Whether a sentencing court must give credit for time spent in pre-sentence custody where that custody related to unrelated charges on which the offender was ultimately discharged at committal
  • Whether the established line of authority (originating in R v Niass) on this question was wrongly decided and should not be followed
  • Whether the sentencing judge properly applied the totality principle when imposing concurrent sentences
  • Whether the sentence for robbery in company was manifestly excessive

Decision

Grounds 1 and 2: Unrelated pre-sentence custody. The Court found the factual foundation for these grounds was weak. During sentencing submissions, the applicant's solicitor raised a period between 8 March and 2 June 2012 when the applicant appeared to have been in custody on charges later discharged at committal. However, after the solicitor conveyed that information, no further submission was made pressing for a specific adjustment to the sentence start date. The sentencing judge made no further reference to the issue in his remarks. The Court noted the applicant himself gave evidence at the sentencing hearing and said nothing about this custody period.

On the substantive legal question, the Court examined the long-standing authority established in R v Niass and followed in multiple subsequent decisions, which holds that a court sentencing for offence A is not required to give credit for time spent in pre-sentence custody referable only to unrelated offence B. The Court was not persuaded that this line of authority was wrongly decided. Pre-sentence custody on a separate, unrelated charge does not bear on the objective or subjective features of the offence for which sentence is being imposed, and the sentencing task does not require the court to treat such custody as a mitigating factor in respect of the unrelated offending.

Ground 3: Totality. The Court found no error in the sentencing judge's approach to totality. The sentences were structured concurrently, and the overall sentence reflected an appropriate assessment of the totality of the applicant's offending.

Ground 4: Manifest excess. The Court considered the seriousness of the offending, which involved following vulnerable victims, physical violence, threats including "do you want to die?", use of an object as a weapon, and robbery of both victims. The applicant had a significant prior criminal history including prior violent offences, and the need for general and specific deterrence was substantial. The Court accepted that the applicant's difficult background and disadvantaged circumstances remained relevant, consistent with Bugmy v The Queen, but these factors did not displace the other sentencing principles. The Court noted the sentencing judge had in fact taken a sympathetic approach, finding special circumstances and imposing a relatively generous non-parole period with an extended parole period. The applicant failed to demonstrate that the sentence was manifestly excessive.

Orders Made

• Leave to appeal against sentence granted
• Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing court is not required to give credit for time spent in pre-sentence custody where that custody was referable only to unrelated charges, including where the offender was ultimately discharged on those charges.
  • The established line of authority from R v Niass and its progeny on the treatment of unrelated pre-sentence custody was found to be correctly decided and remains good law in New South Wales.
  • Where a sentencing submission raises an issue in general terms during submissions but no specific relief is then pressed, the appellate foundation for challenging the sentencing judge's silence on that issue is significantly weakened.
  • Under the Bugmy principle, an offender's background of disadvantage remains a relevant mitigating consideration even after repeated offending and incarceration, but it does not override the competing sentencing objectives of punishment, deterrence, and community protection.
  • In dismissing the appeal, the Court emphasised that a sentence is not manifestly excessive merely because a different judge might have imposed a lesser term, particularly where the sentencing judge had already adopted a sympathetic approach to the applicant's subjective circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 94, 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Bugmy v The Queen [2013] HCA 37; 87 ALJR 1022
- Green v The Queen [2011] HCA 49; 244 CLR 462
- R v Niass (NSWCCA, 16 November 1988, unreported)
- R v Arnold (1993) 30 NSWLR 73
- R v Mai (1992) 26 NSWLR 371
- R v Johns [1978] 2 NSWLR 259
- R v Giam (No 2) [1999] NSWCCA 378
- R v Karageorge [1999] NSWCCA 213
- R v Kelly [2005] NSWCCA 280; 155 A Crim R 499
- R v NZ [2005] NSWCCA 278; 63 NSWLR 628
- R v JW [2010] NSWCCA 49; 77 NSWLR 7
- Jimmy v The Queen [2010] NSWCCA 60
- Huntingdon v R [2007] NSWCCA 196
- Kerr v R [2008] NSWCCA 201
- R v Hampton [2004] NSWSC 1215
- R v Baartman (NSWSC, Dunford J, 18 December 1988, unreported)
- R v Chung (NSWCCA, 9 March 1994, unreported)
- R v David (NSWCCA, 20 April 1995, unreported)
- R v Evans (NSWCCA, 21 May 1992, unreported)
- R v Hudd (NSWCCA, 5 December 1995, unreported)