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Court of Criminal Appeal 27 May 2014

R v Wasson

[2014] NSWCCA 95

Theft & propertyFirearms & weapons
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE PAROLE PERIOD NON PAROLE PERIOD WAS MANIFESTLY INADEQUATE APPEAL DISMISSED

Citation: R v Wasson [2014] NSWCCA 95
Court: Court of Criminal Appeal, New South Wales
Date: 27 May 2014
Judges: Gleeson JA, R A Hulme J, Campbell J

Background

The respondent was convicted by jury of robbery whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years' imprisonment. The offence involved driving a co-offender to a service station in Newcastle where a robbery was carried out at gunpoint. The respondent was subsequently found to have been the instigator and the person who supplied the pistol, though he maintained his innocence on those points at trial.

The sentencing judge in the District Court imposed a total term of 3 years and 9 months with a non-parole period of just 1 year, commencing 3 July 2013. The very short non-parole period reflected findings of special circumstances and a 10 percent discount for assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The Crown appealed, ultimately confining its complaint to the non-parole period alone. By the time of the appeal, the respondent was only weeks away from becoming eligible for parole.

  • Whether the sentencing judge erred by limiting consideration of general deterrence to the head sentence and failing to apply it when fixing the non-parole period.
  • Whether the non-parole period of 1 year was manifestly inadequate.
  • Whether, even if both grounds of error were established, the Court of Criminal Appeal should exercise its residual discretion to refrain from intervening, given the respondent's exceptional personal circumstances.

Decision

Ground 1: General deterrence and the non-parole period

The Court confirmed that general deterrence is a relevant sentencing consideration not only in fixing the head sentence but also in determining the non-parole period. The sentencing judge's remarks made plain that he had restricted his consideration of general deterrence to the head sentence, expressly treating the non-parole period as a separate matter governed only by rehabilitation. The Court held this approach was an error in principle, consistent with authority including R v Simpson [2001] NSWCCA 534.

Ground 2: Manifest inadequacy

The Court upheld this ground as well. A non-parole period of 1 year for a serious armed robbery, on facts that included the respondent initiating the offence and supplying the weapon, was clearly inadequate. The sentencing judge had given disproportionate weight to the respondent's subjective circumstances, including his partner's medical condition and his own psychiatric diagnosis of poly-substance dependence and adjustment disorder with depressed mood.

Discretion not to intervene

Despite upholding both grounds, the Court declined to resentence the respondent and dismissed the appeal. By the time of the appeal, the respondent was fewer than six weeks from parole eligibility. More significantly, the Court found that the respondent's mother had been diagnosed with a serious cancer, with a median survival of approximately 12 months and only around one-third of patients achieving a complete response to treatment. Extending the non-parole period to October 2015 would, in all likelihood, mean the respondent remained incarcerated through his mother's deterioration and possible death. Citing the principle from Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, the Court held that the guidance value of a successful Crown appeal should not come at too high a cost to justice in the individual case.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • General deterrence is a relevant consideration when fixing the non-parole period, not only the head sentence. Restricting its application to the head sentence alone constitutes an error in principle.
  • A non-parole period that gives disproportionate weight to subjective circumstances, at the expense of the objective gravity of a serious armed robbery, may be manifestly inadequate even where the total head sentence is not challenged.
  • In dismissing the appeal, the Court of Criminal Appeal applied the principle from Green v The Queen that the correction of sentencing error should not come at too high a cost to the individual's justice, particularly where circumstances have materially changed since sentencing.
  • Exceptional personal circumstances, including the imminent serious illness or likely death of a close family member, can ground the exercise of the court's residual discretion to refrain from intervention even after grounds of error are made out.
  • A minor arithmetic error in calculating the assistance discount, resulting in a slightly lower discount than intended, did not warrant correction where the practical discrepancy was small and the overall circumstances did not justify intervention.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(2) (armed robbery), s 307(B)(1) (false statement)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23 (assistance to authorities), s 44(2) (special circumstances)

Cases
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- Caristo v R [2011] NSWCCA 7
- Spark v R [2012] NSWCCA 140
- Tabuan v R [2013] NSWCCA 143
- R v GWM [2012] NSWCCA 240
- R v Fepuleai [2007] NSWCCA 325
- R v Thomas [2007] NSWCCA 269
- R v Hamied [2007] NSWCCA 151
- R v Franks [2005] NSWCCA 196
- R v Ceissman [2004] NSWCCA 466
- R v Ellis (1986) 6 NSWLR 603