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Court of Criminal Appeal 1 October 2014

Alvi v R

[2014] NSWCCA 191

Theft & propertyFirearms & weapons

Citation: Alvi v R [2014] NSWCCA 191
Court: NSW Court of Criminal Appeal
Date: 1 October 2014
Judges: Hoeben CJ at CL, McCallum J, Bellew J

Background

The applicant pleaded guilty in the Local Court to six counts of armed robbery under s 97(2) of the Crimes Act 1900 (each carrying a maximum of 25 years imprisonment), together with two firearms offences under the Firearms Act 1996. The offences were committed over a period of approximately five weeks in late 2011, targeting petrol stations and convenience stores across Sydney. In each robbery, the applicant displayed a silver revolver to threatened store attendants before taking cash and, on some occasions, cigarettes.

The applicant was sentenced by Judge Payne in the District Court on 14 June 2013. Her Honour imposed a total sentence of nine years imprisonment with a non-parole period of five years, structured across three consecutive sentence groups. Her Honour also made a finding of special circumstances, which reduced the non-parole period below the statutory ratio.

The applicant sought leave to appeal on three grounds: a technical error in the sentence for one firearms count, failure to apply the totality principle correctly, and manifest excess.

  • Whether the sentencing judge erred by failing to impose a non-parole period for count 7 (possession of an unauthorised pistol), contrary to s 45(1) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge failed to properly apply the totality principle in constructing the overall sentence
  • Whether the overall sentence of nine years with a five-year non-parole period was manifestly excessive

Decision

Ground 1 (Non-Parole Period for Count 7): The Court accepted this ground. Section 45(1) of the Crimes (Sentencing Procedure) Act 1999 required the sentencing judge to impose a non-parole period for count 7, as it carried a standard non-parole period of three years. Her Honour had instead imposed only a fixed term of three years for that count. The Court quashed that sentence and re-sentenced the applicant on count 7 with a non-parole period of two years and three months and an additional term of nine months, producing the same total term but correcting the structural error.

Ground 2 (Totality): The Court dismissed this ground, with Hoeben CJ at CL describing it as "quite misconceived" given the level and number of offences involved. Bellew J found that the sentencing judge had taken a structured and defensible approach to accumulating sentences, appropriately applying the principle of totality to a series of six separate armed robberies against six different victims committed over several weeks.

Ground 3 (Manifest Excess): The Court also dismissed this ground. Applying the test from Dinsdale v R (2000) 202 CLR 321, the applicant needed to show the overall sentence was unreasonable or plainly unjust. Bellew J noted that the Henry guideline judgment (relevant to s 97(1) offences) could be used as a comparative reference, but that the present case involved multiple episodes of criminality rather than a single offence. General deterrence was an important consideration. The Court also noted that the finding of special circumstances was itself particularly generous to the applicant, reducing the non-parole period from what would otherwise have been six years and nine months to five years.

Orders Made

  • Leave to appeal granted
  • The sentence for count 7 quashed; the applicant re-sentenced to a non-parole period of 2 years and 3 months commencing 8 November 2011 and expiring 7 February 2014, with an additional term of 9 months commencing 8 February 2014 and expiring 7 November 2014
  • Appeal otherwise dismissed

Key Takeaways

  • Under s 45(1) of the Crimes (Sentencing Procedure) Act 1999, a court imposing a sentence for an offence carrying a standard non-parole period must set a separate non-parole period; a fixed term alone does not satisfy that obligation.
  • The Court of Criminal Appeal confirmed that the guideline judgment in R v Henry (directed at s 97(1) of the Crimes Act 1900) remains available as a reference point when assessing the seriousness of offences under s 97(2), without being directly controlling.
  • Where an offender commits multiple armed robberies against separate victims over several weeks, the totality principle does not preclude a substantial overall sentence; the cumulative nature of the criminality is itself a significant factor.
  • A finding of special circumstances that reduces the non-parole period below the statutory ratio operates to the benefit of the offender and was treated by the Court as a mitigating feature of the sentence structure, not a ground for further reduction.
  • To establish manifest excess, an applicant must demonstrate that the overall sentence was unreasonable or plainly unjust (Dinsdale v R); disagreement with the weight given to particular factors is insufficient.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45(1)
- Firearms Act 1996 (NSW), ss 7(1), 36(1)

Cases:
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Franks [2005] NSWCCA 196
- R v Hamied [2007] NSWCCA 151
- R v Sharma [2002] NSWCCA 142
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Mill v R (1988) 166 CLR 59
- Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
- Collier v R [2012] NSWCCA 213
- Forbes v R [2009] NSWCCA 292
- Giles v DPP [2009] NSWCCA 308
- KAF v R [2009] NSWCCA 184
- KC v R [2009] NSWCCA 110
- Leddin v R [2008] NSWCCA 242
- Leslie v R [2009] NSWCCA 283
- R v Thomas (1992) 64 A Crim R 269