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Court of Criminal Appeal 29 August 2018

R v Skinner

[2018] NSWCCA 185

Assault & violenceFirearms & weaponsPublic order & justice offences
CRIMINAL LAW AGGREGATE SENTENCE INTELLECTUALLY DISABLED OFFENDER OFFENCES INVOLVING IMITATION FIREARM POSSESS PISTOL KIDNAPPING

Citation: R v Skinner [2018] NSWCCA 185
Court: NSW Court of Criminal Appeal
Date: 29 August 2018
Judge(s): Simpson AJA, Wilson J (principal judgment), Lonergan J

Background

The respondent, Todd Skinner, pleaded guilty in the District Court to five offences arising from two separate incidents in January 2016. The offending involved the use of an imitation pistol and included possessing an unauthorised pistol (on two occasions), specially aggravated break, enter and commit a serious indictable offence (while armed with the imitation pistol), and detaining a person with intent to avoid apprehension.

The facts were serious. In the first incident, the respondent pointed the imitation firearm at a woman on a public street. One week later, he forced his way into a residential unit, threatened the occupant and her associates with both a knife and the imitation firearm, and detained a man inside the unit for approximately five hours while police negotiated outside. During that standoff, the respondent made a reference to the Port Arthur massacre.

The District Court sentenced the respondent to an aggregate term of five years imprisonment with a non-parole period of three years. The Crown appealed to the Court of Criminal Appeal on the ground that the sentence was manifestly inadequate. The respondent had a lengthy history of failing to complete community-based sentences and was assessed as having an intellectual disability, which the sentencing judge treated as a mitigating factor.

  • Whether the sentencing judge's assessment of the objective seriousness of the offending was open on the evidence.
  • Whether the degree of concurrency allowed between the individual sentences, resulting in the aggregate term, was appropriate or constituted an error.
  • Whether the aggregate sentence of five years with a three-year non-parole period was manifestly inadequate so as to warrant appellate intervention.

Decision

Wilson J (with whom Simpson AJA and Lonergan J agreed) dismissed the Crown's appeal, finding no identifiable error in the sentence imposed.

On objective seriousness, Wilson J acknowledged that the offending involved serious features, including the use of an imitation firearm on multiple occasions, a prolonged standoff with police, and threatening conduct toward multiple victims. However, her Honour held that the sentencing judge's characterisation of the objective gravity of the offences was open on the evidence. The Court of Criminal Appeal is slow to interfere with such assessments, which fall classically within the role of the sentencing judge.

On the question of concurrency, Wilson J noted there was genuine factual overlap across the offences. All involved the same imitation pistol, the first incident directly precipitated the second set of offences, and all reflected the respondent's immature understanding of his conduct, itself connected to his intellectual disability. The sentencing judge was entitled to allow a generous degree of concurrency in these circumstances, and that approach was not inappropriate.

Wilson J confirmed there is no mathematical formula governing the extent of accumulation or concurrency between sentences. The task is to assess all relevant features and determine whether the sentence imposed represents the minimum necessary to reflect the totality of the criminal conduct. On that analysis, no error was established.

Orders Made

  • The Crown's appeal was dismissed.

Key Takeaways

  • In dismissing the Crown's appeal, the Court of Criminal Appeal reaffirmed that the assessment of objective seriousness is a factual judgment classically within the sentencing judge's role, and an appellate court will not interfere unless that characterisation was not open on the evidence.
  • Where multiple offences share factual overlap, a generous degree of concurrency in sentencing is not necessarily an error. The connectedness of the offences, including a shared instrumentality such as the same weapon, is a relevant consideration.
  • No mathematical formula governs the degree of accumulation between sentences. The standard is whether the sentence, taken as a whole, represents the minimum necessary to properly reflect the totality of the criminality.
  • An offender's intellectual disability can legitimately inform the degree of concurrency allowed and the overall weight given to subjective factors, even where the objective seriousness of the offending is substantial.
  • A Crown appeal against manifest inadequacy faces a high threshold. The Court of Criminal Appeal found no error in an aggregate five-year term with a three-year non-parole period for offences that included specially aggravated break and enter, kidnapping, and two counts of possessing an imitation pistol.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A(1), 166
- Crimes Act 1900 (NSW), ss 61, 86(1)(b), 112(3), 117
- Criminal Appeal Act 1912 (NSW), s 5D(1)
- Firearms Act 1996 (NSW), s 7(1)

Cases
- Ali v R [2010] NSWCCA 35
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Palijan v R [2010] NSWCCA 142
- R v Mooney (unreported, Victorian Court of Criminal Appeal, 21 June 1978)
- Veen v R (No 2) [1988] HCA 14; 164 CLR 465