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Court of Criminal Appeal 16 December 2015

R v Rose

[2015] NSWCCA 318

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW CROWN SENTENCE APPEAL ARMED ROBBERY WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: R v Rose [2015] NSWCCA 318
Court: Court of Criminal Appeal, NSW
Date: 16 December 2015
Judges: Ward JA; Davies J; RS Hulme AJ

Background

The respondent, a 23-year-old man, pleaded guilty in the Queanbeyan Local Court to one count of robbery armed with an offensive weapon under s 97(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years' imprisonment. The offence involved entering a rural property at Bywong with a serrated knife, confronting an elderly couple (aged 76 and 74), threatening to kill them, and ultimately forcing them to surrender firearm safe keys before they fled in fear of their lives. The respondent removed two firearms, ammunition, and accessories from the property.

The offence was committed while the respondent was on conditional liberty in relation to charges of a similar nature. At sentencing in June 2015, the court received a psychological report, a pre-sentence report, and character references. The sentencing judge imposed a total term of 3 years and 3 months with a non-parole period of 21 months, allowing a 25% utilitarian discount for the guilty plea and finding special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The Director of Public Prosecutions appealed under s 5D(1) of the Criminal Appeal Act 1912 (NSW), contending the sentence was manifestly inadequate.

  • Whether the sentence of 3 years and 3 months (non-parole period of 21 months) for an armed robbery of this nature was manifestly inadequate
  • Whether the sentencing judge erred in the approach taken to the guideline judgment in R v Henry (1999) 46 NSWLR 346
  • Whether the sentencing judge failed to properly treat the respondent's conditional liberty status at the time of offending as a seriously aggravating circumstance
  • Whether the Court of Criminal Appeal should exercise its residual discretion to intervene and resentence

Decision

The Court of Criminal Appeal, in reasons delivered primarily by Ward JA, allowed the Crown appeal and found the sentence manifestly inadequate. The court identified three main features that warranted a substantially heavier sentence: the objective seriousness of the offence (a premeditated, knife-armed robbery targeting elderly and vulnerable victims on a remote property); the severe psychological trauma caused to both victims; and the fact that the respondent committed the offence while on conditional liberty for a similar matter, which the courts have consistently treated as a seriously aggravating circumstance.

The court found that the sentencing judge had not properly applied the guideline judgment in R v Henry, which sets out sentencing parameters for armed robbery offences in NSW. Although the Crown's written submissions at first instance had incorrectly described the guideline's application, the Court of Criminal Appeal declined to attribute the sentencing error to that deficiency, given how well-established and frequently applied Henry is.

On the residual discretion question, the court determined that intervention was appropriate and proceeded to resentence the respondent. Mitigating factors were acknowledged, including the respondent's youth (24 at the time of appeal), the genuine support of his parents, his prior caring conduct toward family members before his methamphetamine addiction, the special circumstances finding supporting a longer parole period for residential rehabilitation, and the 25% discount for the early guilty plea. These factors justified placing the sentence toward the lower end of the available range, but not at the level originally imposed.

RS Hulme AJ agreed in separate remarks, emphasising the gravity of the three principal aggravating features and expressing that the sentencing judge appeared not to have absorbed the guidance that R v Henry and subsequent cases have repeatedly provided.

Orders Made

  • Crown appeal allowed
  • Sentence imposed on 25 June 2015set aside
  • Respondent sentenced to imprisonment for 5 years, commencing 11 October 2014 and expiring 10 October 2019
  • Non-parole period of 3 years, expiring 10 October 2017
  • Earliest eligible parole release date: 11 October 2017

Key Takeaways

  • The Court of Criminal Appeal confirmed that committing an armed robbery while on conditional liberty for a similar offence is a seriously aggravating circumstance that must be given substantial weight in sentencing, not merely acknowledged in passing.
  • A sentence that fails to engage properly with a relevant guideline judgment can constitute a sentencing error, even where the Crown's own submissions at first instance contained an inaccuracy about that guideline's application.
  • Under the R v Henry guideline and basic sentencing principles for s 97(1) offences, the combination of premeditation, weapon use, victim vulnerability, and conditional liberty status required a sentence substantially beyond the 3 years and 3 months originally imposed.
  • In exercising its residual discretion to resentence, the Court of Criminal Appeal weighed the respondent's youth, family support, drug rehabilitation prospects, and the special circumstances finding, ultimately placing the sentence toward the lower end of the appropriate range rather than declining to intervene.
  • Where a sentencing error is attributable to a misapplication of a well-known guideline judgment rather than Crown error, the appellate court retains a firm basis to correct that error by resentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23, 44
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 (armed robbery guideline judgment)
- CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 89 ALJR 407
- Dinsdale v The Queen [2000] HCA 56; (2000) 202 CLR 321
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- R v Button; R v Griffen [2002] NSWCCA 159; (2002) 54 NSWLR 455
- R v Cortese [2013] NSWCCA 148
- R v Harris [2015] NSWCCA 81
- R v Street [2005] NSWCCA 139
- The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- Yousif v R [2014] NSWCCA 180