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District Court 29 June 2018

R v Cummins

[2018] NSWDC 442

Assault & violenceTheft & propertyFirearms & weapons
CRIME ROBBERY AGGREGATE SENTENCE TOTALITY

Citation: R v Cummins [2018] NSWDC 442
Court: District Court of New South Wales
Date: 29 June 2018
Judge: Wilson SC DCJ

Background

The offender appeared for sentencing after pleading guilty to four charges arising from offending on two consecutive days in October 2016. On 9 October 2016, he carjacked a vehicle at gunpoint and then used that vehicle to travel to a hotel in Ashfield, where he conducted an armed robbery at knifepoint, assaulting a staff member and stealing approximately $4,444 in cash. The following day, 10 October 2016, he stole a delivery van from a loading dock and proceeded to rob the Ashfield Post Office at knifepoint, threatening three employees and stealing approximately $1,200.

Two Form 1 matters (additional charges to be taken into account in sentencing without separate conviction) were attached to the two robbery counts. The offender had been in continuous custody since his arrest on 11 October 2016, partly because he was on parole at the time the offences were committed.

The sentencing court had before it psychiatric evidence from Dr Richard Furst, hospital discharge summaries, certificates of programs completed in custody, and a character statement from a friend of the offender. The Crown tendered a sentence bundle and agreed facts.

  • What indicative sentences were appropriate for each individual charge, having regard to the maximum penalties, the Form 1 matters, and a guilty plea discount?
  • What discount, if any, should apply to reflect the offender's guilty pleas?
  • Whether an aggregate sentence was appropriate, and if so, how totality principles should shape the final head sentence and non-parole period?

Decision

The court found a 10% discount appropriate for each charge, reflecting the guilty pleas. The indicative individual sentences, after that discount, were: three years and seven months for the carjacking (count 1); five years and four months for the hotel armed robbery (count 2, with Form 1); one year and nine months for taking the van without consent (count 3); and seven years and two months for the post office armed robbery (count 4, with Form 1).

The court determined that imposing cumulative sentences on each count separately would produce a crushing sentence disproportionate to the overall criminality. The offending occurred across only two consecutive days, which reinforced the appropriateness of an aggregate approach under s 53A of the Crimes (Sentencing Procedure) Act 1999.

Applying totality principles, the court imposed a single aggregate sentence rather than building up from the indicative individual terms. The sentence was backdated to 30 April 2017, reflecting the period already served in custody.

Orders Made

  • The offender was convicted of seven offences (four counts on the Crown Sentence Summary and three Form 1 matters).
  • An aggregate sentence of imprisonment was imposed, comprising a non-parole period of eight years commencing 30 April 2017, with a head sentence of 14 years.
  • The offender becomes eligible for parole on 29 April 2025.

Key Takeaways

  • An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 is available where separate cumulative sentences would produce a result that is disproportionately severe, particularly where the offending is temporally concentrated.
  • Totality principles require a sentencing court to step back from the arithmetic of individual sentences and assess whether the combined sentence reflects the overall gravity of the conduct.
  • A 10% guilty plea discount was applied across all counts, consistent with the timing and circumstances of the pleas.
  • The District Court was required, even when imposing an aggregate sentence, to state the indicative sentence it would otherwise have imposed on each individual count before pronouncing the aggregate term.
  • Form 1 matters (charges taken into account without separate conviction) aggravate the sentence on the principal count to which they attach, and the court confirmed that function explicitly in its remarks.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 154A(1)(a), 154C(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases
- Ionatana v R [2008] NSWCCA 95
- R v McNaughton (2006) 66 NSWLR 566