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Court of Criminal Appeal 31 March 2015

Rangihuna v R

[2015] NSWCCA 48

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING ARMED ROBBERY MULTIPLE OFFENCES CONCURRENCY AND ACCUMULATION DISCRETIONARY EXERCISE

Citation: Rangihuna v R [2015] NSWCCA 48
Court: Court of Criminal Appeal, NSW
Date: 31 March 2015
Judge(s): R A Hulme J, Davies J, Bellew J

Background

The appellant pleaded guilty in the District Court to three counts of aggravated robbery or assault with intent to rob, all committed in company while armed with a replica pistol. The offences occurred across four separate incidents at licensed premises and a service station between 9 December and 25 December 2011. Two further offences (larceny and aggravated break and enter) were taken into account on a Form 1.

Acting Judge Freeman sentenced the appellant to a total effective sentence running from January 2012 to April 2023, with the sentences for each count structured to be partially cumulative on one another. The non-parole periods were partially staggered so that each count commenced before the expiry of the previous one.

The appellant sought leave to appeal on the single ground that the sentencing judge had accumulated the individual sentences to a degree that overstated the total criminality of the offences.

  • Whether the accumulation of the three sentences resulted in a total sentence that overstated the overall criminality of the offending.
  • Whether the sentencing judge erred in the exercise of discretion when structuring the sentences with partial accumulation rather than greater concurrency.

Decision

Davies J (with Hulme J and Bellew J agreeing) dismissed the appeal. The Court found that the sentencing judge had correctly identified and applied the relevant principles governing totality and the choice between concurrent and cumulative sentences, including those drawn from Pearce v The Queen, Mill v R, and Johnson v The Queen.

The Court emphasised that the four incidents, though committed within a short period, involved separate victims at separate locations on separate occasions. Each offence was serious, each victim suffered real terror, and the appellant played a central role in each, consistently armed with a replica pistol. The Court held that the distinct criminality of each offence was not capable of being wholly subsumed within another, meaning full concurrency would have been inappropriate.

The Court also rejected the proposition that offences committed in close temporal proximity must be served concurrently. Citing R v Nguyen, the relevant question is whether the criminality of one offence can be encompassed within the criminality of another, not merely whether the offences occurred close together in time.

Finally, the Court noted that the totality exercise is one of discretion rather than arithmetic calculation, and that no single correct answer is produced mechanically. The appellant had few subjective factors in his favour, and the sentencing judge had expressly turned his mind to totality. No error in the exercise of that discretion was established.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that there is no rule requiring sentences for offences committed in close temporal proximity, or within a single criminal enterprise, to be served concurrently.
  • The controlling question in accumulation decisions is whether the criminality of one offence is capable of being encompassed within the criminality of another, not simply whether the offences occurred around the same time.
  • Application of the totality principle is an exercise of judicial discretion and intuitive synthesis; it cannot be conducted arithmetically and does not yield a single correct outcome.
  • No error was established where the sentencing judge had expressly addressed totality and accumulation, correctly stated the governing principles, and structured sentences that reflected the distinct nature of each offence and each victim.
  • In dismissing the appeal, the Court reinforced that the presence of few subjective mitigating factors limits the basis on which a lesser total sentence can be justified.

Legislation and Cases Referenced

Cases:
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Mill v R (1988) 166 CLR 59
- Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
- JT v R [2012] NSWCCA 133
- R v Nguyen [2007] NSWCCA 14
- McCarthy v R [2011] NSWCCA 64; (2011) 206 A Crim R 131
- McIvor v R [2010] NSWCCA 7
- R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
- R v Lesi [2010] NSWCCA 240
- R v Merrin [2007] NSWCCA 255; (2007) 174 A Crim R 100
- R v Taufahema [2010] NSWCCA 241
- R v Smith [2007] NSWCCA 100

Legislation: No specific legislation was identified in the judgment text.