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7
Court of Criminal Appeal 19 September 2018

Judge v R

[2018] NSWCCA 203

Assault & violenceTheft & property
CRIMINAL LAW APPEAL ROBBERY IN COMPANY LEAVE GRANTED APPEAL DISMISSED

Citation: Judge v R [2018] NSWCCA 203
Court: NSW Court of Criminal Appeal
Date: 19 September 2018
Judges: White JA (leading judgment); Bellew J and Wilson J (agreeing)

Background

The applicant, a 22-year-old man, pleaded guilty on the first day of trial to robbery in company under s 97(1) of the Crimes Act 1900 (NSW), which carries a maximum of 20 years' imprisonment. The offence involved a planned, violent robbery at a Parramatta bus interchange in August 2015, captured on CCTV. The applicant engaged the victim in conversation as a distraction while a co-offender subjected the victim to a sustained and brutal physical assault, after which both men took the victim's property.

The District Court sentenced the applicant to five years and five months' imprisonment, with a non-parole period of four years, after applying a 10 per cent discount for the utilitarian value of his guilty plea. The sentence was structured to commence from the date on which an existing non-parole period (from separate Local Court matters) expired. The sentencing judge declined to find special circumstances that would have altered the statutory ratio between the non-parole period and the total sentence.

The applicant sought leave to appeal in the Court of Criminal Appeal on three grounds: that the sentencing judge failed to apply the principles from the High Court decision in Bugmy v The Queen, that the judge erred in not finding special circumstances, and that the sentence was manifestly excessive.

  • Whether the sentencing judge failed to apply the Bugmy principles regarding the mitigating effect of a deprived background on moral culpability
  • Whether the sentencing judge erred by declining to find special circumstances, which would have altered the ratio of non-parole period to head sentence
  • Whether the sentence of five years and five months (non-parole period of four years) was manifestly excessive

Decision

Ground 1: Bugmy principles. White JA held that the sentencing judge had not failed to apply the principles from Bugmy v The Queen. Those principles require a sentencing court to give appropriate weight to the mitigating effect of a deprived background, recognising that it may reduce an offender's moral culpability. On the evidence before the sentencing judge, no error in this regard was established.

Ground 2: Special circumstances. The applicant argued the sentencing judge should have found special circumstances to justify a lower non-parole period relative to the head sentence, particularly given the need for supervision on release. White JA was not persuaded that the sentencing judge erred in declining to make such a finding. The applicant's record of reoffending while on bail and while serving suspended sentences weighed against any adjustment in his favour on this basis.

Ground 3: Manifest excess. Two arguments were advanced. First, when the overall sentencing structure (combining the index offence with the prior Local Court sentences) was examined, it produced a non-parole period representing approximately 76 per cent of the aggregate head sentence. White JA found this simply reflected the consequence of the applicant committing a further serious offence while on conditional liberty, not any sentencing error. Second, statistical data from the Judicial Commission showed the sentence sat towards the higher end for s 97(1) offences. White JA reiterated the established principle that raw sentencing statistics carry little weight without knowledge of the specific factual and subjective circumstances of comparable offenders, citing Radi v R, Hili v The Queen, and Wong v The Queen. The court noted that if the statistics did reflect an anomaly, that would underscore the need to restate the principles in R v Henry rather than reduce the sentence. Leave to appeal was granted given the issues of principle raised, but the appeal was dismissed.

Orders Made

  • Leave granted to appeal from the sentence imposed in the District Court on 24 July 2017
  • Appeal dismissed

Key Takeaways

  • The Bugmy principles require sentencing courts to consider how a deprived background affects moral culpability, but the mere invocation of those principles on appeal will not succeed where no error in their application is demonstrated at first instance.
  • A finding of special circumstances is not made as a matter of course; a persistent pattern of reoffending on conditional liberty is a relevant consideration that may weigh against such a finding.
  • Raw Judicial Commission sentencing statistics carry limited weight on a manifest excess argument. The Court of Criminal Appeal confirmed that meaningful comparison requires knowledge of the factual and subjective circumstances of the cases underlying those statistics.
  • Where an overall sentence appears high relative to statistics, that may reflect the accumulated effect of aggravating features (including conditional liberty and continued offending on bail) rather than sentencing error.
  • In dismissing the appeal, the Court of Criminal Appeal signalled that if sentencing patterns for s 97(1) offences have drifted below appropriate levels, the response is to restate the R v Henry guideline rather than to reduce an otherwise appropriate sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93C, 97
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- Radi v R [2013] NSWCCA 278
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Wong v The Queen (2001) 207 CLR 584
- R v El Sayah; R v Idaayen; R v Mansaray [2018] NSWCCA 64
- Perkins v R [2018] NSWCCA 62
- CM v R [2013] NSWCCA 341
- RG v R [2017] NSWCCA 60
- R v Fernando (1992) 76 A Crim R 58
- R v Cramp [2004] NSWCCA 264
- R v Fidow [2004] NSWCCA 172