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Court of Criminal Appeal 21 May 2018

Stanley v R

[2018] NSWCCA 93

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE ROBBERY IN COMPANY RESISTING POLICE WHETHER SENTENCE MANIFESTLY EXCESSIVE WHERE DEPRIVED BACKGROUND

Citation: Stanley v R [2018] NSWCCA 93
Court: NSW Court of Criminal Appeal
Date: 21 May 2018
Judge(s): Simpson AJA, Johnson J, Harrison J

Background

The applicant, a 32-year-old Aboriginal man with an intellectual disability, was sentenced by the District Court on 7 September 2017 to 3 years and 6 months imprisonment with a non-parole period of 2 years and 6 months for robbery in company. A separate fixed term of 6 months for resisting police ran concurrently from 15 August 2016. The applicant had pleaded guilty at the earliest opportunity and received a 25 per cent discount, placing the starting point for the robbery at 4 years and 8 months.

The robbery occurred in Moree, where the applicant joined two other men who had already approached a young man walking to work and demanded money under threats of violence. The victim handed over $40. The applicant's role was to join the group after the initial approach, standing in front of the victim, though he did not personally make any threats. Later the same day, the applicant attempted to flee police, leading to the resisting police charge.

The applicant sought leave to appeal the sentence on grounds that the sentencing judge had mistreated his intellectual disability, deprived background, and a finding about conditional liberty, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to find that the applicant's intellectual disability reduced the objective seriousness of the offending
  • Whether the sentencing judge erred by failing to find that the applicant's deprived background reduced his moral culpability
  • Whether the sentencing judge erred by treating the applicant's status on conditional liberty in Queensland as an aggravating factor
  • Whether the sentence was manifestly excessive having regard to all relevant circumstances

Decision

The Court of Criminal Appeal allowed the appeal and resentenced the applicant. Harrison J (with Simpson AJA and Johnson J agreeing) found that the sentence imposed was disproportionate to the gravity of the offence, having regard to its objective seriousness and the applicant's intellectual ability.

On objective seriousness, the Court agreed with the sentencing judge that the robbery fell at the lower end of the range for street robberies. The victim was not physically assaulted, the amount taken was small, and the applicant's involvement was limited: he joined an already-commenced offence, stood in front of the victim, and made no threats himself. The Court found the offence sat at the lowest end of objective seriousness for this type of offence.

On moral culpability, Harrison J observed a significant difficulty with the sentencing judge's approach to rehabilitation and intellectual disability. Because the applicant's intellectual limitations were endogenous and permanent, it was potentially unfair to hold his poor prospects of rehabilitation against him in the same way as an offender who simply chose not to engage with change. The Court found that the applicant's rehabilitation prospects were better understood as dependent on access to appropriate support and assistance after release, rather than as a reflection of personal motivation.

Regarding general and specific deterrence, the Court confirmed that general deterrence carries reduced weight for an offender with an intellectual disability. The Court considered that the period already served by the time of the appeal hearing (approaching 1 year and 9 months) was sufficient to address specific deterrence. The Court also found it important to preserve a meaningful parole period, even if relatively short, to allow access to the support services identified in the psychological report.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by McLennan DCJ on 7 September 2017 for robbery in company quashed
  • In lieu thereof, a non-parole period of 21 months commencing 15 August 2016 and expiring 14 May 2018, with a balance of term of 15 months expiring 14 August 2019
  • The applicant was entitled to release on parole on 15 May 2018 by operation of s 158 of the Crimes (Administration of Sentences) Act 1999

Key Takeaways

  • An offender's intellectual disability is a relevant factor in assessing both the weight of general deterrence and the fairness of treating poor rehabilitation prospects as a negative sentencing consideration, particularly where those limitations are permanent and beyond the offender's control.
  • The Court of Criminal Appeal confirmed that where a robbery offence falls at the lowest end of objective seriousness, the sentence must remain proportionate to that characterisation, and a starting point of 4 years and 8 months was excessive in these circumstances.
  • Assessing moral culpability requires proper engagement with the combination of a deprived background and intellectual disability, not merely a finding that the offender knew right from wrong at the time of the offence.
  • Preserving a meaningful parole period can be appropriate even where the available time is limited, to maximise the opportunity for post-release support and supervision.
  • In resentencing, the Court treated the period already served as sufficient for specific deterrence, reflecting the principle that time spent on remand is a concrete indicator when calibrating the overall sentencing response.

Legislation and Cases Referenced

Legislation
- Crimes (Administration of Sentences) Act 1999 (NSW), s 158

Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Yun v R [2017] NSWCCA 317
- R v Millwood [2012] NSWCCA 2
- Vale v R [2016] NSWCCA 154
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242