Citation: Hayek v R [2016] NSWCCA 126
Court: Court of Criminal Appeal, New South Wales
Date: 29 June 2016
Judge(s): Bathurst CJ, Schmidt J, Wilson J (unanimous)
Background
The appellant was sentenced in the District Court in February 2015 for aggravated break, enter and commit a serious indictable offence (robbery) contrary to s 112(2) of the Crimes Act 1900 (NSW). The aggravating circumstance was that a person, a pharmacy employee, was present on the premises at the time. The sentence imposed was six years imprisonment with a non-parole period of four years.
The offence involved entering a pharmacy in The Rocks, Sydney, before opening time, confronting the sole employee, and compelling her at implied threat of violence to open the safe and till and hand over cash and a significant quantity of prescription drugs. The appellant was apprehended shortly after leaving the premises by a police officer on foot patrol. At the time of the offence, the appellant was on parole for a prior fraud conviction, and had a lengthy criminal history dating back to 1977, including armed robbery, break and enter, drug, larceny, and firearms offences.
The appellant pleaded guilty, and asked the District Court to take three further offences of supplying prohibited drugs into account on sentence (the stolen drugs he intended to pass to friends). Six possession offences were also dealt with by certificate. The appellant sought leave to appeal to the Court of Criminal Appeal, contending the sentence was manifestly excessive.
Legal Issues
- Whether the sentence of six years imprisonment with a four-year non-parole period was manifestly excessive for an offence under s 112(2) of the Crimes Act 1900 (NSW)
- Whether the sentencing judge erred in her assessment of the objective gravity of the offence
- Whether insufficient weight was given to the appellant's subjective case, including his long-standing drug addiction and personal history
- Whether sentencing statistics for the offence type could support a finding of manifest excess
- Whether it was appropriate to derive a notional "starting point" when assessing the sentence
Decision
Wilson J (with whom Bathurst CJ and Schmidt J agreed) dismissed the appeal and refused leave. The Court found the sentence was within the range properly open to the District Court and was neither unreasonable nor unjust, applying the test from R v Dinsdale [2000] HCA 54.
The Court gave detailed consideration to the utility of sentencing statistics in establishing manifest excess. It identified four significant limitations. The statistics were drawn from a narrow, recent time period and could not represent the full range of sentencing outcomes. They covered "all offenders" without distinguishing by age, criminal history, plea, or whether the offender was on conditional liberty at the time. They reflected only "principal offence" sentences and did not account for additional crimes taken into account on sentence, as occurred here. For these reasons, the Court declined to treat the statistics as a meaningful basis for comparison.
The Court also declined to endorse the use of a notional "starting point" as a method for identifying sentencing error, noting that such an approach risked substituting a mechanical exercise for the proper assessment of all relevant factors in combination. The sentencing judge had correctly identified and weighed the relevant considerations, including the objective seriousness of the offence, the appellant's commission of it while on parole, his extensive prior record, his drug addiction, and his limited rehabilitation prospects.
The Court accepted that the appellant's subjective case, including his difficult childhood, long-term drug dependence, and the mitigating effect of his early guilty plea, had been properly taken into account by the sentencing judge. No error in the exercise of the sentencing discretion was established.
Orders Made
- Leave to appeal refused.
Key Takeaways
- Sentencing statistics for a particular offence category carry significant limitations when assessing manifest excess: they do not account for the individual characteristics of offenders, plea history, criminal records, parole status, or additional offences taken into account on sentence.
- A notional "starting point" approach to sentencing carries risks; the Court of Criminal Appeal signalled caution about its use as a method for identifying error, as it may distort the holistic weighing of all relevant sentencing factors.
- Where a sentencing judge correctly identifies and weighs the full range of relevant factors (objective gravity, conditional liberty at the time of the offence, criminal history, subjective circumstances, and the guilty plea), an appellate court will not intervene merely because a different outcome may have been open.
- Committing an offence while on parole, combined with a lengthy and serious prior record, are significant factors that can properly support a sentence above the statistical median for the offence type.
- Under s 112(2) of the Crimes Act 1900 (NSW), the maximum penalty is 20 years imprisonment and the standard non-parole period is five years; both benchmarks formed part of the sentencing framework applied in this matter.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 1A of Part 4; s 33
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), ss 166, 167
- Drug Misuse and Trafficking Act 1986 (NSW), ss 25(1), 29
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)
Cases
- R v Dinsdale [2000] HCA 54; (2000) 202 CLR 321
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Ali v R [2010] NSWCCA 35
- Piscitelli v R [2013] NSWCCA 8
- Pleasance v R [2016] NSWCCA 113
- R v Todorovic [2008] NSWCCA 49
- SS v R; JC v R [2009] NSWCCA 114