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19
Court of Criminal Appeal 24 August 2016

White v R

[2016] NSWCCA 190

Also reported as (2016) 261 A Crim R 302
Assault & violenceTheft & property
CRIMINAL LAW ROBBERY WITH OFFENSIVE WEAPON PLEA OF GUILTY ERROR ESTABLISHED PAROLE PERIOD NO ERROR ESTABLISHED

Citation: White v R [2016] NSWCCA 190
Court: NSW Court of Criminal Appeal
Date: 24 August 2016
Judges: Bathurst CJ; Basten JA; Simpson JA

Background

The applicant pleaded guilty to two offences of robbery with an offensive weapon under s 97 of the Crimes Act 1900 (NSW). One offence was dealt with on a Form 1 (meaning it was taken into account at sentencing without a separate conviction). Both offences were committed in June 2013 while the applicant was on parole for earlier offending from 2005 to 2006.

At the original sentencing, defence counsel conceded that the offences had been committed "in company" with a woman referred to as Ms Clauscen. The sentencing judge treated this as an aggravating factor under s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The applicant later sought leave to appeal against the sentence, raising arguments that had not been put to the sentencing judge.

The applicant was also affected by significant delay between the commission of the offences and sentencing, and had had his parole revoked in the interim. These circumstances raised questions about how the sentencing judge was required to approach both the commencement date of the new sentence and the totality of the overall sentencing exercise.

  • Whether the sentencing judge erred by treating the offence as having been committed "in company" under s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999, given the relationship between the applicant and Ms Clauscen.
  • What the phrase "in company" means in s 21A(2)(e), and whether it requires the other person to be a party to a joint criminal enterprise, or whether it has a broader meaning.
  • Whether the failure by defence counsel to raise these arguments at the original sentencing precluded the Court of Criminal Appeal from intervening.
  • Whether the sentencing judge erred by failing to account for delays in sentencing that were not attributable to the applicant.
  • Whether the applicant's sentence was manifestly excessive due to errors in applying the totality principle.

Decision

Error established: "in company" aggravation

The majority (Bathurst CJ and Simpson JA) held that "in company" in s 21A(2)(e) carries the same meaning as the equivalent concept in the Crimes Act and at common law. Specifically, the other person present must be a party to a joint criminal enterprise for the factor to apply. Because the evidence did not establish that Ms Clauscen was a participant in the offences in that sense, the sentencing judge erred in treating her presence as an aggravating circumstance.

Basten JA took a broader view, reasoning that the language in s 21A(2)(e) is deliberately less formal than equivalent Crimes Act provisions and may extend to situations where associates embolden or support an offender even without being active participants. His Honour concluded, however, that even on that wider construction, the evidence before the sentencing judge was insufficient to establish the aggravating factor, so error was also made out on his analysis. The practical result was the same across all three judges: error was established.

Failure by defence counsel to raise the point

The Court acknowledged the general principle, drawn from Zreika v R [2012] NSWCCA 44, that appellate courts are generally reluctant to intervene where a point was not raised below due to a tactical choice by counsel. The Court nonetheless granted leave to appeal, finding that the interests of justice demanded intervention in the circumstances of this case.

Delay and commencement date

The Court found a further error in the sentencing judge's failure to account for the delay in sentencing, which was not attributable to the applicant. Bathurst CJ and Simpson JA concluded that under s 47(5) of the Sentencing Procedure Act, the power to post-date the commencement of a sentence is limited to the expiry of the non-parole period set by the court for the earlier sentence. It does not matter whether the offender remains in custody because parole was never granted or because parole was granted and later revoked. The delay exposed the applicant to a disadvantage that the sentencing judge was required to take into account but did not.

Orders Made

  • Extension of time to seek leave to appeal, extended to 17 February 2016.
  • Leave to appeal against sentence granted.
  • Appeal allowed; the applicant re-sentenced on the armed robbery of 8 June 2013 (taking into account the armed robbery of 7 June 2013) to a total term comprising:
  • Non-parole period of 3 years and 6 months commencing 19 June 2014 and expiring 18 December 2017.
  • Balance of term of 2 years expiring 18 December 2019.

Key Takeaways

  • The Court of Criminal Appeal confirmed (by majority) that "in company" in s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 bears the same meaning as the equivalent common law and Crimes Act concept: the other person must be a party to a joint criminal enterprise for the aggravating factor to be established.
  • Basten JA dissented on the construction point, preferring a broader reading of s 21A(2)(e) that would not require joint criminal enterprise, but all three judges agreed that error was made out on the facts.
  • A concession by defence counsel that offences were committed "in company" does not bind the Court of Criminal Appeal where the legal underpinning of that concession is incorrect and the interests of justice demand correction.
  • Under s 47(5) of the Crimes (Sentencing Procedure) Act, a sentencing court's power to post-date a sentence is limited to the expiry of the non-parole period for the earlier sentence, and this applies whether the offender is in custody because parole was never granted or because it was revoked.
  • Unjustified delay in sentencing, not attributable to the offender, is a factor a sentencing court must take into account; failure to do so constitutes a sentencing error.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97, 105A, 113
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23, 44, 47, 55

Cases
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
- Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353
- R v Button; R v Griffen [2002] NSWCCA 159; 54 NSWLR 455
- Bayram v R [2012] VSCA 6
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
- Markou v R [2012] NSWCCA 64; 221 A Crim R 48
- Martin v R [2016] NSWCCA 104
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- Romero v R [2011] VSCA 45; 32 VR 486