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Court of Criminal Appeal 19 April 2016

R v Caldwell

[2016] NSWCCA 55

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE CROWN APPEAL

Citation: R v Caldwell [2016] NSWCCA 55
Court: NSW Court of Criminal Appeal
Date: 19 April 2016
Judges: Beazley P, Harrison J, R A Hulme J (unanimous, reasons by R A Hulme J)

Background

The respondent pleaded guilty in the District Court to five serious offences committed over approximately five weeks in September and October 2013. The offences included three counts of aggravated break, enter and steal (targeting a Westpac branch, an IGA supermarket, and a credit union), one count of armed robbery at a Bendigo Bank, and one count of driving a stolen vehicle. Three further offences were taken into account on a Form 1, including a conspiracy to commit armed robbery.

The offences were highly organised and carried out with co-offenders using stolen vehicles and a sledgehammer. Staff and members of the public were subjected to fear and distress during several of the incidents. The respondent acted as getaway driver across the series.

The District Court imposed an aggregate sentence of 6 years and 3 months imprisonment with a non-parole period of 3 years and 8 months, backdated to the date of arrest. The Crown appealed, contending the sentence was manifestly inadequate and that the sentencing judge had failed to account for the fact that the offences were committed while the respondent was on a good behaviour bond.

  • Whether the aggregate sentence of 6 years and 3 months was manifestly inadequate given the number and seriousness of the offences.
  • Whether the sentencing judge erred by failing to treat the respondent's status on conditional liberty (a good behaviour bond) as an aggravating factor.
  • Whether the degree of notional accumulation applied to the indicative sentences was insufficient to reflect the overall criminality of the offending.

Decision

The Court of Criminal Appeal upheld both grounds of appeal. On the first ground, the Court found the aggregate sentence failed to reflect the totality of the respondent's criminality. The sentencing judge had assessed each offence as a serious example of its type, and the most serious (the Westpac Bank robbery) as "very serious," yet the aggregate sentence did not sufficiently accumulate the indicative sentences to capture the full weight of the repeated, planned offending.

On the second ground, the Court found the sentencing judge had simply omitted to take into account that the offences were committed while the respondent was on a good behaviour bond. Under the Crimes (Sentencing Procedure) Act 1999 (NSW), committing offences while on conditional liberty is a statutory aggravating factor, and its omission constituted a legal error.

The Court also reconsidered the indicative sentence for Offence 5, finding it inadequate given the two Form 1 matters associated with it, particularly the conspiracy to commit armed robbery. The starting point for that offence was raised from 4 years 6 months to 6 years, with the indicative sentence after applying a plea discount set at 4 years 6 months with a non-parole period of 3 years.

Having found error in both respects, the Court re-sentenced the respondent. The new aggregate sentence of 10 years imprisonment with a non-parole period of 6 years was imposed to properly reflect the totality of the criminal conduct. The finding of special circumstances made by the primary judge was maintained.

Orders Made

  • Crown appeal against sentence allowed.
  • Sentence imposed in the District Court on 28 August 2015 quashed.
  • Respondent sentenced to imprisonment for 10 years with a non-parole period of 6 years, dating from 27 October 2013; non-parole period to expire 26 October 2019, total term to expire 26 October 2023.

Key Takeaways

  • A sentencing court's failure to treat offending while on conditional liberty as an aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW) constitutes an error of law sufficient to ground a Crown appeal.
  • The Court of Criminal Appeal confirmed that an aggregate sentence must reflect the overall criminality of multiple serious offences; insufficient notional accumulation of indicative sentences can render an aggregate sentence manifestly inadequate even where individual indicative sentences are not challenged.
  • Where Form 1 offences are of particular gravity (here, conspiracy to commit armed robbery), their weight must be meaningfully reflected in the indicative sentence for the principal offence to which they are attached.
  • In re-sentencing, the Court increased the aggregate term from 6 years 3 months to 10 years, a substantial uplift that illustrates the cumulative weight the court attached to repeated, planned, and violent commercial robberies carried out over a short period.
  • No evidence was adduced by the respondent on re-sentencing beyond a note from the Crown that he had incurred no disciplinary infractions in custody; the Court maintained the primary judge's finding of special circumstances in fixing the non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 112(2), 154A(1)(b), 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, Pt 3 Div 3
- Criminal Appeal Act 1912 (NSW), s 5D(1)

Cases
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- CMB v Attorney General for New South Wales [2015] HCA 9; 317 ALR 308
- Delaney v R; R v Delaney [2013] NSWCCA 150; 230 A Crim R 581
- Galvin v R [2015] NSWCCA 88
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- JM v R [2014] NSWCCA 297
- R v Fernando (1992) 76 A Crim R 58
- R v Osenkowski (1982) 30 SASR 212
- R v Stoupe [2015] NSWCCA 175
- R v Van Ryn [2016] NSWCCA 1
- Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36