Citation: R v El Sayah; R v Idaayen; R v Mansaray [2018] NSWCCA 64
Court: Court of Criminal Appeal, New South Wales
Date: 16 April 2018
Judges: Hoeben CJ at CL; White JA; N Adams J
Background
Three respondents, each aged 18 at the time of the offence, pleaded guilty to robbery in company under s 97(1) of the Crimes Act 1900 (NSW). The offence arose from a premeditated attack on a tobacconist shop in Yagoona in September 2016. The four co-offenders arrived in a stolen car, entered the shop armed with knives and a meat cleaver, and subjected the sole employee to sustained violence over approximately eight minutes. The victim was pinned to the floor, stood on, and assaulted, sustaining multiple injuries. The entire incident was captured on CCTV.
Each respondent had no prior criminal history, came from a supportive family, was in employment, and pleaded guilty at the earliest opportunity. The sentencing judge at the District Court imposed sentences of two years and four months with a non-parole period of ten months for each respondent.
The Director of Public Prosecutions appealed under s 5D(1) of the Criminal Appeal Act 1912 (NSW), contending that both the head sentences and the non-parole periods were manifestly inadequate.
Legal Issues
- Whether the sentences imposed were manifestly inadequate having regard to the objective seriousness of the offending
- Whether the sentencing judge properly applied the guideline judgment in R v Henry [1999] NSWCCA 111 for armed robbery offences
- Whether the non-parole period of ten months could be justified, given its departure from the standard ratio of non-parole to head sentence without explanation
- Whether residual discretion should be exercised to decline resentencing despite finding error, given the respondents' strong subjective circumstances and time already served
Decision
The Court found the offending was objectively serious and assessed at mid-range, or above, for an offence of robbery in company. All three judges who viewed the CCTV footage described an extended and serious ordeal: the victim was confronted by four armed men, pinned to the ground, stood upon, and threatened with a meat cleaver. The Court held the offending was more serious than the "typical" offence described in R v Henry, which sets a sentencing range of four to five years for armed robberies possessing seven nominated characteristics.
The sentencing judge had failed to explain the very low non-parole period of ten months. A non-parole period ordinarily represents at least three-quarters of the head sentence unless special circumstances are found, and no adequate justification was given for the significant departure here. The Court found the unexplained brevity of the non-parole period reflected a broader error in the sentencing approach.
The Court acknowledged the strong subjective features: youth, no criminal history, employment, family support, genuine remorse, and early guilty pleas attracting a 25 per cent discount. However, these factors, while capable of significantly ameliorating the appropriate sentence, could not justify the degree of departure from the R v Henry guideline that the sentences represented.
Residual discretion, the power a court retains to decline resentencing even after identifying error, was considered but not exercised. The Court noted that the statistical picture of how s 97(1) offences were being sentenced in New South Wales, with a high proportion attracting wholly suspended sentences or community alternatives, suggested the guidance in R v Henry needed to be reiterated. The appeal was allowed and all three respondents were resentenced.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Court of Criminal Appeal confirmed that the R v Henry guideline, which prescribes a sentencing range of four to five years for armed robbery offences with the seven nominated characteristics, remains applicable and must not be departed from without explanation.
- A non-parole period substantially below three-quarters of the head sentence requires express identification of special circumstances; an unexplained departure of that magnitude constitutes appealable error.
- Strong subjective features in a young offender's case, including no prior record, family support, employment, remorse, and an early guilty plea, can meaningfully reduce sentence, but do not, without more, justify a result well outside the guideline range for objectively serious offending.
- In declining to exercise residual discretion, the Court emphasised that statistical evidence of widespread under-sentencing for s 97(1) offences reinforced the need to reassert the R v Henry guidance rather than allow the inadequate sentences to stand.
- Under R v Henry, the characteristic of "young offender with no or little criminal history" is described as too broad to be definitive on its own of the subjective weight to be given to an offender's personal circumstances, as confirmed by reference to R v Faaoloii, Schaafhausen & Tuala [2016] NSWCCA 263.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5
- Criminal Appeal Act 1912 (NSW), s 5D(1)
Cases:
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (guideline judgment for robbery in company)
- R v Faaoloii, Schaafhausen & Tuala [2016] NSWCCA 263
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Everett v The Queen [1994] HCA 49; 181 CLR 295
- Power v The Queen [1974] HCA 26; 131 CLR 623
- Chung v R [2017] NSWCCA 48
- Harris v R [2015] NSWCCA 81
- Perkins v R [2018] NSWCCA 62
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Thomas [2007] NSWCCA 269
- R v Tran [1999] NSWCCA 109