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Court of Criminal Appeal 26 November 2014

R v Hopoi

[2014] NSWCCA 263

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE ROBBERY WITH WOUNDING CROWN APPEAL WHERE DEFERRAL APPROPRIATE NO FINDING OF OBJECTIVE SERIOUSNESS

Citation: R v Hopoi [2014] NSWCCA 263
Court: NSW Court of Criminal Appeal
Date: 26 November 2014
Judge(s): Hoeben CJ at CL, R A Hulme J, Davies J (all agreeing)

Background

The respondent pleaded guilty in the Local Court to robbery in circumstances of aggravation with wounding under s 96 of the Crimes Act 1900 (NSW), an offence carrying a maximum penalty of 25 years imprisonment. The offending involved the respondent and two associates robbing a taxi driver in the early hours of the morning, during which the respondent punched the driver in the chin, causing a laceration requiring stitches. The driver was also deprived of approximately $800 to $900 in cash.

The matter was committed to the District Court for sentence. In July 2014, the sentencing judge declined to impose a custodial sentence immediately and instead deferred proceedings under s 11(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), with conditions including abstinence from alcohol and drugs and participation in rehabilitation programs. The judge intended to receive a report from Community Corrections before finalising the sentence.

The Crown appealed on the ground that the deferral was manifestly inadequate. Before the appeal was determined, the matter returned before the sentencing judge, who adjourned for sentence and ordered an assessment for an Intensive Corrections Order. However, no formal order revoking the s 11 deferral was made, and the Court of Criminal Appeal proceeded on the basis that the deferral remained on foot.

  • Whether the Court of Criminal Appeal retained jurisdiction to hear the appeal, given later developments in the District Court proceedings
  • Whether the sentencing judge erred by deferring sentence under s 11 of the Crimes (Sentencing Procedure) Act 1999 rather than imposing a custodial sentence
  • Whether the deferral was manifestly inadequate for an offence of robbery with wounding under s 96 of the Crimes Act 1900

Decision

On the jurisdiction question, the Court found that no order formally revoking the s 11 deferral had been made at the subsequent October 2014 hearing, despite discussions about that possibility. Accordingly, the deferral remained the sentence under appeal and the Court retained jurisdiction to dispose of the matter.

On the substantive question, Davies J (with whom the other members agreed) found that the sentencing judge had given excessive weight to rehabilitation while failing to make any finding as to the objective seriousness of the offending. The Court noted that the respondent's rehabilitation was already well advanced by the time of sentencing, and it was difficult to see how a further deferral would assist in fixing the appropriate sentence or non-parole period.

The Court applied the guideline judgment in R v Henry (1999) 46 NSWLR 346, which confirmed that, except in exceptional circumstances, a full-time custodial sentence is ordinarily required for armed robbery. That guideline applies equally to offences under s 96 of the Crimes Act 1900, as confirmed in R v Thomas [2007] NSWCCA 269. The Court found that most of the features identified in Henry were present in this offence, including the use of actual violence, and that no exceptional circumstances had been established to justify departing from a full-time custodial term.

The Court declined to exercise its residual discretion to refrain from intervening, finding no utility in doing so given the nature of the orders proposed. The matter was remitted to the District Court for sentence.

Orders Made

  • Appeal allowed
  • Matter remitted to the District Court for sentence of the respondent according to law

Key Takeaways

  • Under the guideline in R v Henry, exceptional circumstances must be established before a court departs from a full-time custodial sentence for offences of armed robbery, and this requirement extends equally to offences of robbery with wounding under s 96 of the Crimes Act 1900.
  • A deferral of sentence under s 11 of the Crimes (Sentencing Procedure) Act 1999 is not appropriate where the offender's rehabilitation is already well advanced at the time of sentencing and a deferral would serve no practical purpose in fixing the length of sentence or non-parole period.
  • Placing primary emphasis on rehabilitation, without making findings about the objective seriousness of the offence, constitutes an error in the exercise of the sentencing discretion for an offence of this gravity.
  • No formal revocation of a s 11 deferral order had occurred merely because the sentencing court later adjourned for sentence and ordered an ICO assessment; the deferral remained on foot until formally revoked, preserving the Court of Criminal Appeal's jurisdiction.
  • In dismissing the respondent's argument that the Court should decline to intervene on the basis of limited utility, the Court confirmed that the residual discretion identified in Green v The Queen does not automatically arise simply because later proceedings have commenced in the court below.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 96 (robbery in circumstances of aggravation with wounding)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11 (deferral of sentence)
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 (guideline judgment on armed robbery sentencing)
- R v Thomas [2007] NSWCCA 269 (application of Henry to s 96 offences)
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 (residual discretion in Crown appeals)
- R v Brown [2009] NSWCCA 6; 193 A Crim R 574
- R v Farrell [2014] NSWCCA 30
- R v Palu [2002] NSWCCA 381; 134 A Crim R 174
- R v Trindall [2002] NSWCCA 364; 133 A Crim R 119