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Court of Criminal Appeal 2 December 2015

Baleiovalau v R

[2015] NSWCCA 305

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEALS SENTENCING PAROLE PERIOD OF 10 YEARS PAROLE PERIOD EXCESSIVE OFFENDER CRIMINAL LAW

Citation: Baleiovalau v R [2015] NSWCCA 305
Court: NSW Court of Criminal Appeal
Date: 2 December 2015
Judge(s): Gleeson JA (principal judgment), Bellew J and RS Hulme AJ (agreeing)

Background

The applicant was convicted after trial in the District Court of aggravated attempted robbery committed in December 2004 at a Commonwealth Bank branch in Regents Park. During that offence, the applicant and two masked co-offenders entered the bank armed with a pistol and a sledgehammer. A shot was fired in an attempt to breach the tellers' area, causing a minor injury to a customer by ricochet. The offenders left without obtaining any cash.

The applicant was not arrested for this 2004 offence until May 2013, by which point he was already serving a substantial sentence imposed in 2007 for a series of armed robbery offences committed between February and April 2005. Those 2005 offences involved three separate matters, and the sentence imposed by Tupman DCJ for them produced an effective total term of 10 years 6 months with an effective non-parole period of 7 years 6 months.

On 21 August 2014, Lakatos SC DCJ sentenced the applicant to 5 years imprisonment with a non-parole period of 3 years for the 2004 offence, commencing from 11 April 2013. This accumulation on the existing 2005 sentence produced an overall non-parole period of approximately 10 years and an overall term of approximately 12 years. The applicant sought leave to appeal against the severity of that sentence.

  • Whether the sentencing judge erred in his assessment of the objective seriousness of the 2004 offence
  • Whether the sentencing judge failed to give meaningful effect to the totality principle when accumulating the sentence on the existing 2005 sentence
  • Whether the overall term was disproportionate to the overall non-parole period
  • Whether the judge erred by comparing the applicant's circumstances with those of an alleged co-offender (Mr Taotala) when there was no proper basis for that comparison

Decision

The Court of Criminal Appeal rejected the grounds relating to objective seriousness and the co-offender comparison. On objective seriousness, Gleeson JA found the sentencing judge's assessment was open on the facts: the offence involved a loaded firearm that was actually discharged, causing injury, and a sledgehammer used to breach the bank. The comparison with Mr Taotala was also not made out as an error, given that Taotala was convicted of a different, lesser offence and sentenced accordingly.

The appeal succeeded on ground 2: the totality principle. The totality principle requires a court to step back and assess whether an aggregate sentence, produced by accumulating sentences for separate offences, is just and appropriate in all the circumstances. The relevant question was what sentence would likely have been imposed had the applicant been dealt with for all offences at the same time.

Gleeson JA accepted that if the 2004 offence had been sentenced alongside the 2005 offences, the judge dealing with all matters together would not have imposed the same overall result. Applying the approach in Mill v The Queen and R v Todd, the Court concluded that an appropriate non-parole period for the 2004 offence, when the totality principle was properly applied, was 2 years rather than 3 years. The sentence term of 5 years was otherwise appropriate, but the commencement date was adjusted.

The Court also found special circumstances warranted a finding in light of the accumulation, to produce a more proportionate overall non-parole period relative to the overall term. The adjusted sentence meant the applicant was immediately eligible for parole at the time of the appeal decision.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The sentence imposed in the District Court on 21 August 2014 was quashed
  • The applicant was resentenced to imprisonment for 5 years with a non-parole period of 2 years commencing 11 April 2012 and expiring 10 April 2014, with a balance of term of 3 years commencing 11 April 2014 and expiring 10 April 2017
  • The Court noted the applicant was eligible for immediate release on parole

Key Takeaways

  • The totality principle requires a sentencing court to assess what sentence would likely have been imposed had all offences been dealt with at the same time, particularly where later-prosecuted offences chronologically precede earlier-sentenced ones.
  • A sentence for a 2004 offence sentenced years after a 2007 sentence for 2005 offences can still attract meaningful totality scrutiny, even though the earlier sentence has already been served in part.
  • Where accumulation produces an overall non-parole period that is disproportionate to what a single sentencing court would have imposed for all offences together, that disproportion can constitute an error warranting appellate correction.
  • Finding special circumstances based on accumulation is available to moderate the ratio of non-parole period to head sentence when an accumulated sentence would otherwise produce an unduly harsh overall parole position.
  • Comparison between co-offenders is only a valid sentencing consideration where the co-offenders were convicted of the same or materially comparable offences under materially comparable circumstances; a co-offender acquitted of the principal charge and convicted of a lesser, distinct offence does not provide a sound comparator.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) and s 97(2) (aggravated robbery and attempted robbery while armed)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Baleiovalau v R [2009] NSWCCA 153
- Barrett v R [2011] NSWCCA 213
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Kentwell v R [2014] HCA 37; 252 CLR 201
- LG v R [2012] NSWCCA 249
- Mill v The Queen [1988] HCA 70; 166 CLR 59
- Mulato v R [2006] NSWCCA 282
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Todd [1982] 2 NSWLR 517
- Wu v R [2011] NSWCCA 102; 211 A Crim R 88