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Court of Criminal Appeal 7 May 2014

Tynan v R

[2014] NSWCCA 75

Assault & violenceTheft & propertyTraffic & drivingFirearms & weapons
CRIMINAL LAW APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE OFFENCES OF ROBBERY WHILST ARMED APPLICANT DECLINED TO BE HEARD NO LESSER SENTENCE WARRANTED

Citation: Tynan v R [2014] NSWCCA 75
Court: Court of Criminal Appeal, New South Wales
Date: 7 May 2014
Judge(s): Bathurst CJ, Johnson J, R A Hulme J (judgment by R A Hulme J, with whom the others agreed)

Background

The applicant pleaded guilty at an early stage to two offences of robbery whilst armed, committed on 9 and 18 June 2012 at service stations. He carried a steel rod during one robbery and an umbrella shaft during the other, threatening attendants and taking several hundred dollars on each occasion. He also pleaded guilty to driving whilst disqualified.

The District Court at Parramatta sentenced the applicant in December 2012. The judge allowed a 25 percent reduction for the utilitarian value of the early guilty pleas and imposed 3 years 6 months (with a non-parole period of 2 years) for each armed robbery offence. The sentences were partially accumulated by 6 months, producing a total effective sentence of 4 years with a minimum custodial component of 2 years 6 months. The driving offence attracted a concurrent 6-month term.

The applicant sought leave to appeal against the severity of those sentences, arguing that the sentencing judge had misunderstood the guideline judgment in R v Henry and had incorrectly compared the applicant's offences to the typical armed robbery case described there.

  • Whether the sentencing judge misapprehended the features of the "typical case" described in the guideline judgment R v Henry [1999] NSWCCA 111.
  • Whether any such error in applying the guideline justified appellate intervention under s 6(3) of the Criminal Appeal Act 1912 (NSW), which requires the Court to be satisfied that a lesser sentence was warranted and should have been passed.

Decision

R A Hulme J accepted that the sentencing judge had made some errors in characterising the typical case from Henry. Specifically, the judge wrongly treated that guideline as concerned with "street robbery" and then treated the present offences as more serious because they occurred on commercial premises where an employee was "particularly vulnerable." Those characterisations were inaccurate.

Despite those errors, the Court found the sentences themselves were, having regard to all objective and subjective features, entirely unremarkable. The mitigating factors were substantial, including the applicant's troubled childhood, absence of a significant prior record, genuine remorse, mental health difficulties, and good rehabilitation prospects. Aggravating factors included that he was on bail at the time of both offences.

Critically, even where an error in the sentencing process is established, appellate intervention is only warranted under s 6(3) of the Criminal Appeal Act 1912 if the Court is satisfied a lesser sentence was warranted and should have been passed. The Court was not so satisfied. The sentences reflected two separate armed robbery offences, and no lesser sentence could be contemplated.

The Court also noted an additional procedural obstacle for the applicant. Before imposing sentence, the judge had unusually foreshadowed the proposed terms and specifically invited the applicant's legal representative to submit whether the sentence was "too much or too little." After conferring with the applicant, the representative declined to make any submissions.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • Establishing that a sentencing judge misapplied aspects of a guideline judgment does not automatically justify appellate intervention. Under s 6(3) of the Criminal Appeal Act 1912 (NSW), the Court must also be satisfied that a lesser sentence was warranted and should have been passed.
  • The Court of Criminal Appeal confirmed that errors in characterising a guideline's "typical case" can coexist with a sentence that is otherwise sound when assessed against the full objective and subjective circumstances.
  • Where a sentencing judge foreshadows a proposed sentence and expressly invites submissions on its appropriateness, a failure by the applicant to take that opportunity carries weight against a later severity appeal.
  • Under R v Henry, the suggested range of 4 to 5 years for commonly encountered armed robbery applies to a typical case. Variations in the circumstances of individual offences require careful comparison, and errors in that comparison do not necessarily infect the outcome.
  • In dismissing the leave application, the Court described the proposed appeal as "completely lacking in merit," signalling that procedural opportunities to contest a sentence at first instance are significant.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery whilst armed, maximum 20 years imprisonment)
- Criminal Appeal Act 1912 (NSW), s 6(3) (test for appellate intervention on severity)
- Criminal Procedure Act 1986 (NSW), s 166 (referral of matters to the District Court)

Cases
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (guideline judgment for armed robbery sentencing)
- R v Hemsley [2004] NSWCCA 228 (mitigating factors relating to mental health)