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Court of Criminal Appeal 19 December 2014

R v Jennar

[2014] NSWCCA 331

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE MULTIPLE ARMED ROBBERIES SHOOT WITH INTENT TO MURDER SIGNIFICANT OBJECTIVE SERIOUSNESS WASTE OF TIME

Citation: R v Jennar [2014] NSWCCA 331
Court: Court of Criminal Appeal, New South Wales
Date: 19 December 2014
Judges: Leeming JA, McCallum J, R A Hulme J (judgment delivered by R A Hulme J)

Background

The respondent was sentenced in the District Court at Parramatta in May 2014 for five serious offences committed between June 2010 and July 2011. The offences included four armed robberies at a post office, a hotel, a bowling club, and a building society, as well as a charge of shooting with intent to murder. The shooting arose from an incident at the Water Board Bowling Club where a patron who confronted the respondent during the robbery was shot in the abdomen at close range by a co-offender, acting on the respondent's instruction. The victim required multiple surgeries and was in a critical condition.

The sentencing judge, Hanley DCJ, imposed an aggregate sentence of 16 years' imprisonment with a non-parole period of 12 years. The Crown appealed under section 5D of the Criminal Appeal Act 1912 (NSW), contending that the aggregate sentence was manifestly inadequate given the gravity of the offending.

The Crown submitted that individual indicative sentences were too lenient and that the overall sentence failed to reflect the cumulative seriousness of repeated, planned, and violent armed robberies by an offender with a prior criminal history.

  • Whether the sentencing judge erred in concluding that the offences were not motivated principally by greed, on the basis that the respondent's drug addiction was a material factor.
  • Whether individual indicative sentences were inadequate having regard to the objective seriousness of the offences and the guideline established in R v Henry.
  • Whether the aggregate sentence of 16 years was manifestly inadequate when assessed against the principle of totality.
  • Whether it was appropriate for the Court to view CCTV footage tendered by the Crown on the appeal.

Decision

CCTV footage: The Court declined to treat the viewing of CCTV footage as a useful exercise on a Crown appeal against sentence. R A Hulme J observed that such material adds little where the facts are not in dispute and the sentencing judge has already made findings, describing the invitation to view the footage as a waste of time.

Drug addiction and motive: The Court found no error in the sentencing judge's conclusion that the respondent's crimes were not motivated principally by greed. The respondent's serious drug addiction was an accepted and relevant contextual factor. The Court also confirmed, consistent with Bugmy v The Queen, that the respondent's difficult upbringing was properly taken into account in assessing his moral culpability.

Individual indicative sentences: The Court acknowledged that some of the indicative sentences were lenient, particularly when measured against the R v Henry guideline and the judge's own assessment that these offences exceeded the typical seriousness contemplated by that guideline. The latter two offences, including the shooting, were assessed as significantly more serious than the baseline.

Aggregate sentence and totality: The Court rejected the Crown's method of isolating one component of the aggregate sentence and treating the remainder as referable to the other offences. R A Hulme J held that this approach has no utility in assessing whether an overall sentence properly reflects the principle of totality. Balancing the multiple serious offences against the respondent's genuine remorse, emerging insight into the link between drug abuse and criminality, and mitigating personal circumstances, the Court was not persuaded that a sentence of 16 years was unreasonable or plainly unjust. The appeal was dismissed.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the test on a Crown appeal is not whether the sentence is lenient, but whether the result is unreasonable and plainly unjust. Reasonable minds may legitimately differ on what is an appropriate sentence.
  • Isolating one component of an aggregate sentence and treating the balance as referrable to the remaining offences is not a useful method for assessing whether totality has been correctly applied.
  • A sentencing court does not err by finding that serious acquisitive offending was not motivated principally by greed where there is an accepted factual basis linking the offending to drug addiction.
  • The Court confirmed that an offender's deprived upbringing remains a relevant mitigating consideration, consistent with the High Court's approach in Bugmy v The Queen, even where the offending is serious.
  • Inviting an appellate court to view CCTV footage on a Crown sentence appeal, where the underlying facts are not in dispute, was treated as adding no value to the exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 29, 97(1), 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- JM v R [2014] NSWCCA 297
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v XX [2009] NSWCCA 115; 195 A Crim R 38