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Court of Criminal Appeal 22 August 2016

R v Hetherington

[2016] NSWCCA 165

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE ARMED ROBBERY WITH A DANGEROUS WEAPON HANDGUN APPEAL ALLOWED RESPONDENT RESENTENCED

Citation: R v Hetherington [2016] NSWCCA 165
Court: NSW Court of Criminal Appeal
Date: 22 August 2016
Judges: Hoeben CJ at CL, Button J, N Adams J

Background

The respondent, a 60-year-old man, was convicted of armed robbery with a dangerous weapon under s 97(2) of the Crimes Act 1900 (NSW), an offence carrying a maximum penalty of 25 years' imprisonment. In July 2014, he entered a short-term loans office in Blacktown, produced an unloaded semi-automatic pistol, and demanded cash. Staff handed over $7,500. He was apprehended shortly after fleeing the scene and immediately admitted to the offence.

In the District Court, Judge Williams sentenced the respondent to a 2-year intensive correction order (ICO), to commence in May 2016. The sentencing judge accepted a range of subjective matters in the respondent's favour, including remorse, good rehabilitation prospects, a lengthy crime-free period of nearly 30 years, depression, hearing impairment, and the unusual circumstances surrounding his motivation for the offence.

The Crown appealed the sentence on multiple grounds, principally that the ICO was manifestly inadequate for an offence of this nature and that the sentencing judge had erred in several respects, including the characterisation of the offence's objective gravity and the use of sentencing statistics.

  • Whether the sentencing judge erred in characterising the objective seriousness of the offence as being at the lower end of the range
  • Whether the sentencing judge made errors in the use of sentencing statistics and comparable cases
  • Whether it was open to find exceptional circumstances justifying a non-custodial sentence
  • Whether the ICO imposed was manifestly inadequate

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding that the sentencing judge had fallen into error. Button J (with whom Hoeben CJ at CL and N Adams J agreed) identified a combination of errors in the first instance reasoning, including the treatment of objective seriousness and the reliance on sentencing statistics and comparable cases.

The Court accepted that the respondent's subjective circumstances were genuinely favourable. His lengthy crime-free period, stable employment, remorse, depression, hearing impairment, troubled upbringing, and the distress caused by the protracted procedural history all warranted consideration. However, Button J noted that even accepting the respondent's somewhat improbable accounts (including finding the pistol in a park and receiving cannabis on credit for 20 years), those circumstances did not overcome the fundamental seriousness of the offence.

The Court held that no sentence other than full-time imprisonment was appropriate for an armed robbery involving the production of a loaded-looking pistol and the terrorising of staff members. The ICO was quashed and the respondent was resentenced. Given the unusual subjective features and the distress caused by the procedural history, Button J considered the sentence should sit well towards the lenient end of the available range.

Special circumstances were found to justify a longer than usual parole period, based on the respondent's need for support on reintegration, the particular difficulties full-time imprisonment with younger men would pose for a hearing-impaired older man, and his decades of law-abiding conduct despite significant personal hardship.

Orders Made

  • Appeal allowed
  • The sentence imposed in the District Court on 6 May 2016 is quashed
  • The respondent is sentenced to a non-parole period of 18 months, dating from 6 May 2016, to be followed by a parole period of 18 months
  • Head sentence: 3 years' imprisonment with a non-parole period of 18 months, commencing from the date of the quashed ICO
  • The respondent to be released to parole on 5 November 2017, with the parole period expiring 5 May 2019

Key Takeaways

  • Armed robbery involving the production of a firearm at members of the public is an offence of substantial objective gravity; an intensive correction order will not ordinarily be a sentencing option, regardless of favourable subjective circumstances.
  • Where a sentencing judge errs in the characterisation of objective seriousness and in the use of sentencing statistics and comparable cases, those errors may, in combination, justify appellate intervention even where the subjective case for leniency is strong.
  • The Court of Criminal Appeal confirmed that, on resentencing, a respondent receives full credit for time served under a quashed ICO.
  • Distress and uncertainty caused to an offender by a prolonged or procedurally complicated sentencing history is a recognised factor that may modestly moderate the ultimate sentence imposed.
  • Special circumstances justifying a reduced non-parole period may be established by a combination of factors, including the offender's age, disability, the challenges of imprisonment in a particular custodial environment, and a demonstrated history of overcoming significant personal adversity.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 94, 97(1), 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 50(1)
- Firearms Act 1996 (NSW), ss 4, 4D
- Weapons Prohibition Act 1998 (NSW), Sch 1

Cases:
- Bao v R [2016] NSWCCA 16
- EF v R [2015] NSWCCA 3
- Mulato v Regina [2006] NSWCCA 282
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Readman (1990) 47 A Crim R 181