Citation: XX v R [2018] NSWCCA 112
Court: Court of Criminal Appeal, NSW
Date: 9 July 2018
Judge(s): White JA, Johnson J, Harrison J (judgment delivered by Harrison J)
Background
The applicant pleaded guilty in the District Court to two offences under s 97(2) of the Crimes Act 1900 (NSW): robbery while armed with a dangerous weapon (Count 1) and assault with intent to rob while armed with a dangerous weapon (Count 2). Both offences occurred on the same day in January 2016 and involved the applicant entering a pharmacy and then a jewellery shop while wearing a balaclava and gloves and wielding a silver replica pistol. He obtained $1,400 from the pharmacy but left the jewellery shop empty-handed after staff responded in Arabic. A separate offence of possessing an unauthorised pistol, found in a vehicle he was travelling in later that afternoon, was taken into account on a Form 1 (a document that formally places additional offences before the court for consideration at sentencing without further conviction).
Hoy DCJ sentenced the applicant to an aggregate imprisonment term of 5 years and 6 months with a non-parole period of 3 years and 8 months. Each sentence incorporated a 45% discount to reflect both his guilty plea and his assistance to authorities. The applicant's subjective circumstances included a long history of Crohn's disease, chronic depression, a significant criminal record for similar offences, and a background involving a gang debt and a retaliatory shooting.
The applicant sought leave to appeal to the Court of Criminal Appeal on a single ground: that the sentences were manifestly excessive.
Legal Issues
- Whether the starting points adopted by the sentencing judge for each offence were too high, having regard to the judge's own findings on objective seriousness and the applicant's subjective circumstances
- Whether the sentences were inconsistent with comparable cases and therefore indicated a failure to apply correct sentencing principles
- Whether, taken together, those matters established that the sentences were manifestly excessive
Decision
Harrison J (with White JA and Johnson J agreeing) dismissed the appeal. The Court found that the applicant had not demonstrated any error in the sentencing judge's exercise of discretion, let alone the degree of error required to establish manifest excess: the applicant needed to show not merely that another judge might have reached a different conclusion, but that no judge could reasonably have arrived at the same outcome.
On the question of starting points, the Court noted several features that justified departures upward from the sentencing range indicated in the guideline judgment R v Henry (1999) 46 NSWLR 346. These included the degree of planning in Count 1 (disguise, concealed number plates, a getaway car, an accomplice, and apparent insider knowledge), the applicant's extensive criminal record including prior similar offences, and the Form 1 firearms offence carrying a maximum of 14 years imprisonment and a standard non-parole period of 4 years.
The Court examined the comparable cases the applicant relied upon and accepted that some, such as R v Davies [2015] NSWCCA 224 and Hudson v R [2007] NSWCCA 302, involved lower head sentences and non-parole periods. However, those cases had to be weighed alongside others, including Hudson v R [2016] NSWCCA 30, Somba v R [2012] NSWCCA 214, and Moore v R [2010] NSWCCA 188, in which sentences broadly comparable to those imposed here were upheld. The Court found no relevant disconformity between the present sentences and the range revealed by those authorities.
The Court also confirmed the applicable legal framework: comparable cases serve as a yardstick and may reveal discernible sentencing patterns, but they do not set binding outer limits on the sentencing discretion. The unifying sentencing principles underlying the comparable cases are what matters, consistent with the High Court's statements in Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58 and The Queen v Pham (2015) 256 CLR 550.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A sentence is not manifestly excessive simply because another judge might have reached a different conclusion; the applicant must establish that no judge could reasonably have imposed the same sentence.
- Comparable decided cases function as a yardstick against which to examine an impugned sentence, but they do not define the outer permissible bounds of the sentencing discretion, as confirmed by the High Court in Barbaro and Pham.
- Where multiple comparable cases exist, the full range must be considered: the presence of some decisions with lower sentences does not establish manifest excess if other decisions support sentences at the level imposed.
- Features such as significant pre-planning, an extensive criminal record for similar offending, and the presence of a Form 1 firearms offence can justify starting points well above the range suggested by a guideline judgment, even where the weapon used was a replica incapable of causing serious injury.
- Under the guideline judgment in R v Henry, robbery involving a replica rather than a real firearm is treated as less serious, but courts must still recognise that the weapon's purpose was to induce fear of death or injury in victims.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(2)
- Firearms Act 1996 (NSW), s 7(1)
Cases
- Baleiovalau v R [2015] NSWCCA 305
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Hudson v R [2007] NSWCCA 302
- Hudson v R [2016] NSWCCA 30
- Hughes v R [2018] NSWCCA 2
- Johnson v R; Moody v R [2010] NSWCCA 124
- Legge v R [2007] NSWCCA 244
- Moore v R [2010] NSWCCA 188
- R v Davies [2015] NSWCCA 224
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Jurisic (1998) 45 NSWLR 209
- R v Majstrovic [2000] NSWCCA 420
- Robertson v R [2017] NSWCCA 205
- Somba v R [2012] NSWCCA 214
- The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39