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Court of Criminal Appeal 30 November 2015

Vai v R

[2015] NSWCCA 303

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE MULTIPLE ARMED ROBBERY OFFENCES ON PAROLE FOR SIMILAR WHETHER SENTENCE MANIFESTLY EXCESSIVE SENTENCE CLEARLY WITHIN RANGE

Citation: Vai v R [2015] NSWCCA 303
Court: NSW Court of Criminal Appeal
Date: 30 November 2015
Judges: Beazley P, Johnson J, R A Hulme J

Background

The applicant was convicted in a joint trial of six offences arising from an armed robbery at the Hunters Hill Club on 10 May 2012. He and a co-offender entered the club armed with a .22 calibre rifle and a tomahawk-style axe respectively, wearing disguises and gloves. The applicant threatened multiple patrons at gunpoint, forcing four middle-aged to elderly women to hand over their personal belongings while he held the rifle inches from their heads.

At sentencing in the District Court at Parramatta, Judge Armitage imposed an aggregate term of 10 years imprisonment with a non-parole period of 6 years and 6 months, commencing 1 July 2012. The applicant had an extensive criminal history for his age, including a previous sentence for an almost identical offence at a licensed club, which he had committed while on bail and parole. The current offences were also committed while he was on parole.

The applicant sought leave to appeal against the aggregate sentence on the single ground that it was manifestly excessive.

  • Whether the aggregate sentence of 10 years with a 6 year 6 month non-parole period was manifestly excessive in all the circumstances
  • Whether the sentencing judge properly exercised his discretion in backdating the aggregate sentence to 1 July 2012
  • Whether section 18(3) of the Criminal Appeal Act 1912 (NSW), which allows the Court to order that time spent in custody pending an appeal does not count toward the sentence if the appeal is unarguable or frivolous, should be applied

Decision

R A Hulme J (with whom Beazley P and Johnson J agreed) found the appeal utterly devoid of merit. The aggregate sentence was clearly within the legitimate range of the sentencing judge's discretion, given the serious nature of the offences, the applicant's significant criminal history, his repeated breaches of court orders and parole, and the guarded assessment of his rehabilitation prospects.

The Court noted that the sentencing judge had already exercised considerable leniency in backdating the sentence to 1 July 2012. That commencement date had the practical effect of subsuming almost entirely both the balance of the applicant's earlier parole term and a separate one-year sentence for drug supply offences. The applicant had been convicted after a trial and received no discount for a guilty plea, yet still sought to characterise the resulting sentence as excessive.

On the section 18(3) question, R A Hulme J observed that the provision permits the Court to order that time spent in custody pending appeal does not count toward a sentence where the appeal is unarguable or frivolous. The Court found the present appeal met that description but declined to invoke the provision because no prior warning had been given to the applicant that it might be applied. Johnson J noted that section 18(3) remains part of the Court's current statutory framework and may arise for consideration in an appropriate future case.

Orders Made

  • Leave to appeal against sentence refused.

Key Takeaways

  • An aggregate sentence of 10 years for multiple armed robberies at a licensed club was found to be clearly within range where the offender had a significant history of violence, had repeatedly breached parole and court orders, was unrepentant, and had only guarded prospects of rehabilitation.
  • A sentencing judge's decision to backdate an aggregate sentence in a manner that subsumes concurrent custodial obligations is a proper exercise of discretion and does not render the effective head sentence excessive.
  • Under section 18(3) of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal has power to order that time spent in custody pending an appeal does not count toward the sentence if it is satisfied the appeal was unarguable or frivolous. This power has not been exercised since the provision was amended in 1995, but the Court confirmed it remains available.
  • Procedural fairness considerations prevented the Court from invoking section 18(3) in this case, as the applicant had received no prior warning that the provision might be applied.
  • The gravity of threatening elderly and middle-aged patrons at gunpoint in a social setting, combined with an almost identical prior offence, strongly supported the emphasis the sentencing judge placed on personal deterrence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 97(2), 344A
- Criminal Appeal Act 1912 (NSW) s 18
- Courts Legislation Further Amendment Act 1995 (NSW)

Cases
- JM v R [2014] NSWCCA 297
- R v Costache (Court of Criminal Appeal (NSW), 13 November 1990, unreported)
- R v Cuthbertson [1974] 1 NSWLR 672
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346