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Court of Criminal Appeal 7 March 2016

Hudson v R

[2016] NSWCCA 30

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE ARMED ROBBERY OFFENCE INVOLVED EXTENSIVE PLANNING OFFENDERS DOES NOT REVEAL ERROR

Citation: Hudson v R [2016] NSWCCA 30
Court: NSW Court of Criminal Appeal
Date: 7 March 2016
Judge(s): Bathurst CJ, Hall J, R A Hulme J (judgment by R A Hulme J)

Background

The appellant was convicted after trial of robbery whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900 (NSW). The offence occurred at a bowling club in August 2012 and involved a carefully coordinated plan executed with two co-offenders, one of whom was an employee of the club who acted as an inside man. The robbery netted over $34,500 and included the use of shotguns, disguises, a stolen getaway car, and a burner phone arranged under a false name.

The sentencing judge in the District Court imposed a sentence of 10 years' imprisonment with a non-parole period of 7 years and 6 months. The appellant sought leave to appeal on two grounds: that the sentencing judge had wrongly assessed the objective seriousness of the offence, and that the sentence was manifestly excessive (that is, unreasonably heavy on its face).

The appellant had a substantial criminal history beginning in the Children's Court at age 16, including multiple prior convictions for robbery, assault, and weapons offences. A psychiatrist's report tendered at sentencing documented a deeply troubled childhood, including reported sexual and physical abuse, homelessness, his father's suicide, and substance abuse.

  • Whether the sentencing judge erred in characterising the planning as "extensive" and in assessing the offence as "well above the middle" of the range of seriousness for armed robbery offences
  • Whether the sentence of 10 years was manifestly excessive
  • Whether the sentencing judge placed undue weight on the victim impact statement by quoting it in full in the remarks on sentence
  • Whether an inadvertent misstatement in the sentencing remarks about the appellant's criminal history constituted material error
  • Whether the appellant's disadvantaged upbringing was given sufficient weight in mitigation

Decision

The Court of Criminal Appeal dismissed all grounds and upheld the sentence. On the first ground, R A Hulme J found that characterising the planning as "extensive" was not an overstatement, given the eight distinct preparatory steps identified in the evidence. The judge's reference to "violence" being extensive was also properly read as confined to the planning, not the violence itself, and the threats made to the victim at gunpoint were plainly capable of supporting a serious finding in any event.

The Court rejected the argument that the sentencing judge had erred by characterising the offence as "well above the middle" of the seriousness range. That assessment was open on the facts, and the mere fact that judges sentencing co-offenders had reached different conclusions did not establish error. Sentences imposed on co-offenders are an indicative reference point, not a binding benchmark.

On the victim impact statement, the Court held that reproducing it in full in the sentencing remarks did not demonstrate that the judge gave it undue weight. Any inadvertent misstatement of the appellant's criminal history was found to be immaterial. The Court also accepted that the appellant's troubled background warranted genuine consideration, but observed that a proportionate sentence for a serious offence may still be a lengthy one even where an offender's moral culpability is reduced by disadvantage. The sentencing judge expressly acknowledged the upbringing and still concluded that a lengthy term was required.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Extensive planning for an armed robbery, including recruiting an inside man, conducting reconnaissance, acquiring firearms, and arranging post-offence concealment, supported a finding of high objective seriousness and an assessment of "well above the middle" of the seriousness range.
  • Differing sentences imposed on co-offenders by different sentencing judges do not, of themselves, reveal error in the sentencing of the offender under appeal. Co-offender sentences serve as a guide rather than a constraint.
  • Quoting a victim impact statement in full within sentencing remarks does not, without more, demonstrate that a sentencing judge gave it undue or improper weight.
  • Under the principle affirmed in Bugmy v The Queen (2013) 249 CLR 571, a deeply deprived upbringing may reduce an offender's moral culpability, but it may simultaneously increase the weight to be given to personal deterrence and community protection. A lengthy sentence can remain proportionate to the gravity of the offence even where genuine mitigation exists.
  • No material error arose from an inadvertent misstatement of an offender's criminal history where the error had no real bearing on the sentence ultimately imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 97(2) (robbery whilst armed with a dangerous weapon; maximum 25 years)

Cases
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- Mulato v R [2006] NSWCCA 282
- R v Millwood [2012] NSWCCA 2