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Court of Criminal Appeal 23 September 2016

R v Weismantel

[2016] NSWCCA 204

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING MULTIPLE ARMED ROBBERIES SENTENCE MANIFESTLY INADEQUATE

Citation: R v Weismantel [2016] NSWCCA 204
Court: Court of Criminal Appeal, New South Wales
Date: 23 September 2016
Judge(s): Beazley P, R A Hulme J, R S Hulme AJ

Background

The respondent was sentenced in the District Court on 1 October 2015 for a series of serious armed robberies committed on 23 September 2013, together with earlier offending. The offences included the robbery of a cinema, a hotel, and a carjacking, carried out with multiple co-offenders armed with an axe, a sawn-off shotgun, and a walking stick. The respondent personally pointed the sawn-off shotgun at a cinema employee and said, "Do you want to die?" All of the September 2013 offences were committed while the respondent was on parole for a prior armed robbery, which was itself committed while on parole for two further armed robbery offences.

The sentencing judge imposed an aggregate sentence, taking into account the respondent's significantly disadvantaged upbringing and mental illness as mitigating factors. The Crown appealed under s 5D of the Criminal Appeal Act 1912 (NSW), arguing the sentence was manifestly inadequate, particularly in relation to the non-parole period.

  • Whether the aggregate sentence, and the non-parole period in particular, was manifestly inadequate given the objective gravity of the offending.
  • Whether the sentencing judge made a parity error by comparing the respondent's sentence to a co-offender's sentence without accounting for the co-offender's 25% discount for early guilty pleas.
  • Whether the sentencing judge erred in quantifying the discount for facilitation of the administration of justice under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether, even if error were established, the Court should exercise its residual discretion to decline to intervene.

Decision

The Court divided on the outcome. R A Hulme J (with whom Beazley P agreed) found the sentence manifestly inadequate and allowed the Crown appeal. R S Hulme AJ, while agreeing there were sentencing errors, was not persuaded the sentence crossed the threshold of manifest inadequacy and proposed dismissal of the appeal.

On the question of manifest inadequacy, R A Hulme J accepted that the respondent's dysfunctional upbringing and mental illness warranted significant mitigation. However, his Honour concluded that those subjective features had unduly overshadowed the substantial objective gravity of the offending, resulting in a sentence that was not just and reasonable in light of the totality of the criminality. In particular, the reduction of the non-parole period from the ordinary benchmark of approximately 6 years 4.5 months down to 4 years 6 months was found to be excessive. R A Hulme J relied on the principle stated in R v Simpson that the non-parole period must itself appropriately reflect the criminality involved, not merely the offender's rehabilitative needs.

On the parity issue, R A Hulme J identified a flaw in the sentencing process. The sentencing judge had compared the respondent's indicative sentences to those of co-offender Roach without acknowledging that Roach's sentences had been reduced by 25% for early guilty pleas. This meant the judge was comparing the respondent's sentences to post-discount figures rather than the true starting points. R A Hulme J noted that parity cannot be relied upon by the Crown to argue for an increase in sentence, and the issue was raised only to explain how the sentencing process had gone wrong.

A further observation was made regarding the 15% discount the sentencing judge applied under s 22A for facilitation of the administration of justice. R A Hulme J noted this was anomalous, as it exceeded the 10% discount given for guilty pleas in other matters. More fundamentally, quantifying mitigating factors other than guilty pleas or assistance to authorities as a percentage discount constitutes an erroneous two-stage sentencing approach. As the Crown had acquiesced in this approach below, this error did not affect the outcome, but the Court noted it for future guidance.

Orders Made

  • Crown appeal allowed.
  • Sentence imposed in the District Court on 1 October 2015 quashed.
  • In lieu, the respondent sentenced to an aggregate term of imprisonment of 9 years 6 months, with a non-parole period of 6 years, dating from 1 March 2014, with eligibility for parole on 29 February 2020.

Key Takeaways

  • A non-parole period must reflect the objective criminality of the offending and cannot be reduced to a level that merely accommodates rehabilitative needs; subjective mitigating factors, however compelling, cannot unduly overshadow the gravity of serious offences committed by a repeat offender on parole.
  • Where a sentencing judge compares an offender's sentence with a co-offender's sentence for parity purposes, the comparison must be made to the co-offender's starting point before any discount for guilty plea, not to the reduced final figure.
  • Parity is not a ground the Crown may rely upon to argue for a sentence increase; it may, however, be raised by the Crown to demonstrate a flaw in the sentencing process.
  • Quantifying mitigating factors (other than guilty pleas and assistance to authorities) as a percentage discount constitutes an erroneous two-stage approach to sentencing, which is contrary to established authority.
  • The Court of Criminal Appeal confirmed that even with compelling subjective features such as mental illness and severe childhood disadvantage, proportionality between sentence and criminality remains an overriding constraint on the exercise of the sentencing discretion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22A, 23
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- CMB v Attorney General for New South Wales (2015) 89 ALJR 407; [2015] HCA 9
- Flaherty v R; R v Flaherty [2016] NSWCCA 188
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- R v Doff [2005] NSWCCA 119
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Henry [2007] NSWCCA 90
- R v Moore & Weibe (Court of Criminal Appeal (NSW), 11 August 1992, unreported)
- R v O'Connor [2014] NSWCCA 53
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- R v Stoupe [2015] NSWCCA 175
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Veen (No 2) v The Queen (1988) 164 CLR 465; [1988] HCA 14