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Court of Criminal Appeal 17 October 2016

Walker v R

[2016] NSWCCA 224

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE BREAK ENTER AND STEAL DELAY IN PROSECUTING APPEAL SENTENCE

Citation: Walker v R [2016] NSWCCA 224
Court: NSW Court of Criminal Appeal
Date: 17 October 2016
Judges: Hoeben CJ at CL, Hall J, Davies J

Background

The applicant pleaded guilty in the Local Court in February 2014 to attempted robbery armed with an offensive weapon and possession of a prohibited weapon (a home-made Taser). A related break, enter and steal offence was listed on a Form 1 to be taken into account at sentencing. The offences arose from a late-night incident at a service station in Seven Hills, where the applicant broke in through a side window, confronted a console operator while armed with a hunting knife, and stole several mobile phones.

The applicant was sentenced in the District Court in July 2014, receiving a non-parole period of ten months (backdated to November 2013) with an additional term of nearly two years, together with a 12-month bond for the weapons offence. He was released to bail on lodgement of his appeal, leaving approximately 67 days of his non-parole period unserved.

By the time the appeal was heard, more than two years had elapsed. During that period the applicant had engaged in residential drug rehabilitation, secured stable employment with a stonemason, and demonstrated significant progress. The delay in prosecuting the appeal meant the applicant had been on conditional liberty throughout.

  • Whether the sentencing judge erred by treating the threat of violence and use of a weapon as aggravating factors, when those elements are already constituent elements of the offence of armed robbery
  • Whether the original sentence was unreasonable or plainly unjust in light of the applicant's rehabilitation
  • What sentence was appropriate on re-sentencing, given the time already served, the applicant's progress, and the short remaining period of custody

Decision

The Crown conceded grounds one and two, accepting that the sentencing judge had impermissibly double-counted elements of the offence of attempted armed robbery as separate aggravating features. That concession was properly made, and the Court proceeded directly to the question of what sentence should be substituted.

On re-sentencing, the Court acknowledged that the applicant had by that point served approximately 236 days in custody or deemed custody. The remaining unserved period was around 62 days. The Court weighed the seriousness of the offending, which it described as a serious crime of violence, against the applicant's genuine and well-documented rehabilitation, his stable employment, and the extended period he had spent on conditional liberty without further offending.

The Court identified three considerations that pointed away from simply returning the applicant to full-time custody for a short remaining term. First, a brief additional custodial period would achieve little in terms of the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999. Second, the court drew on the spirit of s 5 of that Act, which requires consideration of whether imprisonment is truly necessary for sentences of six months or less. Third, an Intensive Correction Order (ICO) was assessed as better serving the goals of punishment, accountability and rehabilitation than a short return to custody followed by parole.

The Court imposed a 16-month term of imprisonment to be served by way of an ICO, taking into account the time already served. It expressly noted that the imposition of an ICO for what it characterised as a serious violent offence should not be read as a precedent for future sentencing decisions, given the highly unusual circumstances of the case.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 24 July 2014 quashed
  • Applicant referred for assessment of suitability for an Intensive Correction Order pursuant to Division 3 of Part 5 of the Crimes (Sentencing Procedure) Act 1999
  • Proceedings adjourned pending that assessment

Key Takeaways

  • A sentencing judge commits a recognised error by treating the threat of violence or use of a weapon as an aggravating factor in an armed robbery offence, because those features are already built into the elements of that offence and have informed the maximum penalty.
  • Where an appeal against sentence is delayed significantly, the time an applicant spends on conditional liberty is a relevant consideration in the re-sentencing exercise, particularly where the applicant has made genuine progress towards rehabilitation during that period.
  • An Intensive Correction Order can, in sufficiently unusual circumstances, be an available sentencing option even for a serious violent offence, though the Court of Criminal Appeal explicitly cautioned against treating this outcome as a general precedent.
  • Under the Crimes (Sentencing Procedure) Act 1999, s 3A purposes, including punishment, accountability and rehabilitation, inform not only the original sentencing decision but also the re-sentencing exercise on appeal, and may weigh against a mechanistic return to custody for a short residual term.
  • In dismissing the option of simply affirming the original sentence, the Court found that an ICO would more effectively serve the statutory purposes of sentencing than the combination of a brief custodial period and a lengthy parole tail.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5
- Weapons Prohibition Act 1998 (NSW), s 7

Cases
- Brown v R [2013] NSWCCA 44; (2013) 228 A Crim R 298
- Fedele v R [2015] NSWCCA 286
- Hughes v R [2008] NSWCCA 48; (2008) 185 A Crim R 155
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- R v Anderson [2012] NSWCCA 175
- R v Henry (1999) 46 NSWLR 346