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Court of Criminal Appeal 20 March 2015

T v R

[2015] NSWCCA 28

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING ASSISTANCE TO AUTHORITIES WHETHER SENTENCES MANIFESTLY EXCESSIVE

Citation: T v R [2015] NSWCCA 28
Court: Court of Criminal Appeal, New South Wales
Date: 20 March 2015
Judge(s): Hoeben CJ at CL; Harrison J; R A Hulme J

Background

The applicant pleaded guilty in the District Court to four counts across two indictments, arising from two separate incidents in 2011. The first involved an attempted armed bank robbery at Mascot, during which the applicant and co-offenders entered a bank with weapons, failed to breach security screens, and the applicant subsequently commandeered a bystander's vehicle to flee. The second incident arose from a street confrontation in which the applicant, believing he was being targeted by enemies, fired a pistol into the air from his vehicle. He was arrested and police located two firearms in his car.

The District Court sentenced the applicant to an aggregate term of 11 years imprisonment with a non-parole period of 7 years and 4 months. The sentencing judge applied a combined discount of 30% for the applicant's early guilty pleas and his assistance to authorities. The applicant was on parole at the time of both incidents, and his parole was revoked upon arrest.

The applicant sought leave to appeal to the Court of Criminal Appeal on two grounds: that the sentencing judge allowed an insufficient discount for assistance to authorities, and that the sentences were manifestly excessive.

  • Whether the sentencing judge erred in the level of discount applied for the applicant's assistance to authorities, having regard to the nature and extent of that assistance, the risks it created for the applicant, and the difficult custodial conditions he faced as a result.
  • Whether the aggregate sentence and the individual indicative sentences were manifestly excessive.

Decision

On the first ground, Harrison J examined the contents of the sealed exhibit tendered at sentencing, which included an affidavit of police assistance and a letter from the NSW Crime Commission. The assistance led to the arrest of an offender for supply of explosives and the seizure of 46 Powergel explosives. However, the applicant had not made a formal statement or agreed to give evidence against the offender, and police had not assessed his safety as being in jeopardy as a direct result of providing information, though the Crime Commission characterised the risk as "moderate to high."

Harrison J noted the applicant's difficult custodial circumstances, including being held in protection for the duration of his sentence due to the serious and ongoing threats against him. The Court acknowledged these factors weighed in favour of a meaningful discount, but concluded the sentencing judge had been aware of them and the combined 30% discount was not inadequate. No error within the principles established in House v The King was demonstrated, and the first ground was dismissed.

On the second ground, the applicant relied primarily on Judicial Commission statistics to support the claim of manifest excess. Harrison J noted the well-established limitations of such statistics in sentence appeals and found the sentences were not manifestly excessive. The applicant himself conceded that the resolution of the first ground effectively disposed of the second.

The Court also noted, but expressly disregarded for the purposes of the appeal, a late affidavit filed by the Crown suggesting the applicant had failed to give evidence at Local Court proceedings, leading to the dismissal of charges against defendants. The Court found the timing and content of that affidavit curious, and noted it had never been placed before the sentencing judge. Two additional letters from law enforcement agencies, both post-dating the sentencing, were similarly disregarded as they were not available to the sentencing judge.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A combined sentencing discount for guilty pleas and assistance to authorities is not rendered insufficient merely because the assistance carried personal risk to the offender or resulted in difficult custodial conditions, provided the sentencing judge was aware of and considered those factors.
  • In dismissing the appeal, the Court of Criminal Appeal applied the established principle from House v The King that an appellate court will not intervene in a sentencing exercise simply because it might have reached a different result, but only where error is affirmatively demonstrated.
  • Judicial Commission statistics have limited utility in sentence appeals and do not, of themselves, establish that a sentence is manifestly excessive.
  • Where an offender provides information to authorities but does not make a formal statement or agree to give evidence, the level of assistance may be assessed as less than the highest order, even where that information produces a tangible law enforcement outcome.
  • Late material placed before an appellate court that was not before the sentencing judge, and whose accuracy was disputed but untested, will not be relied upon in determining a sentence appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 117, 154(1)(a), 93G(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Firearms Act 1996 (NSW), s 7(1)

Cases:
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- R v Durocher-Yvon [2003] NSWCCA 299; (2003) 58 NSWLR 581
- R v Mostyn [2004] NSWCCA 97; (2004) 145 A Crim R 304
- R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
- SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
- Z v R [2014] NSWCCA 323