Citation: Cummins v R [2019] NSWCCA 163
Court: NSW Court of Criminal Appeal
Date: 22 July 2019
Judges: Bathurst CJ, Price J (principal judgment), N Adams J
Background
The appellant pleaded guilty in the District Court to four offences arising from two days of criminal activity in October 2016: a carjacking at knifepoint, an armed robbery at a hotel gaming area, theft of a van, and an armed robbery at a post office. Several additional armed robbery offences were placed on a Form 1 (meaning they were taken into account at sentencing without separate convictions being recorded). The appellant received a 10% discount for his guilty pleas.
The sentencing judge imposed an aggregate term of 14 years imprisonment with a non-parole period of 8 years, commencing 30 April 2017. The appellant sought leave to appeal that sentence on multiple grounds.
The appellant had a prior history of armed robbery, a documented mental health history including drug-induced psychosis and treatment with antipsychotic medication, and a long-standing pattern of illicit drug use.
Legal Issues
- Whether the sentencing judge erred by using Form 1 offences to increase the assessed objective seriousness of the principal offences
- Whether the judge improperly applied the statutory aggravating factor of multiple victims and a series of criminal acts under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999
- Whether the judge erred in treating the threat of violence as an aggravating factor when it was an element of the charged offences
- Whether the judge incorrectly applied the totality principle in constructing the aggregate sentence
- Whether the aggregate sentence was manifestly excessive
- On resentence: whether the appellant's mental health reduced his moral culpability, and whether he was genuinely remorseful
Decision
The Court of Criminal Appeal found error in the sentencing judge's approach on several grounds. The sentencing judge had impermissibly used Form 1 offences to elevate the objective seriousness of the principal offences, contrary to established authority that limits the role of Form 1 matters to the overall sentencing exercise rather than as a tool to inflate the gravity of specific counts. The judge also erred in treating the threat of violence as an aggravating factor for the armed robbery counts, when the threat was an inherent element of those offences and therefore could not be double-counted.
The Court accepted that some errors did not independently warrant intervention, but the cumulative effect of the sentencing errors, combined with a finding that the aggregate sentence was manifestly excessive, warranted resentencing. The Court proceeded to conduct that exercise itself.
On resentence, the Court considered the guideline judgment in R v Henry (1999) 46 NSWLR 346 on armed robbery sentencing. Price J accepted that the appellant's mental health history was a relevant factor in assessing moral culpability, though the weight given to it was moderated by the nature and planning evident in the offences. The Court also considered the appellant's expression of remorse and the need to apply the totality principle carefully when constructing an aggregate sentence for multiple serious offences.
Applying these principles, the Court reduced the aggregate sentence from 14 years to 11 years 6 months, with a non-parole period of 6 years 6 months.
Orders Made
- Leave to appeal granted
- Appeal against sentence allowed
- Sentence imposed in the District Court on 29 June 2018 quashed
- In lieu thereof, the appellant sentenced to an aggregate term of 11 years 6 months imprisonment, with a non-parole period of 6 years 6 months commencing 30 April 2017 and concluding 29 October 2023, and a balance of term of 5 years expiring 29 October 2028
Key Takeaways
- Form 1 offences cannot be used to increase the assessed objective seriousness of the principal offence to which they are attached; their role in sentencing is distinct from elevating the gravity of the count itself.
- Under s 21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, a court cannot treat the threat or use of violence as an aggravating factor where that conduct is already an essential element of the offence charged.
- A documented mental health history, including psychotic episodes and antipsychotic treatment, may reduce an offender's moral culpability at sentencing, though its weight will depend on the particular circumstances of the offending.
- Applying the totality principle requires the sentencing court to look at the overall sentence and ensure it is proportionate to the totality of the criminal conduct, not merely to add individual sentences together mechanically.
- The Court of Criminal Appeal confirmed that the accumulation of sentencing errors, even where individual errors might not each independently justify intervention, can collectively support a finding that the resulting sentence is manifestly excessive.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) ss 97, 154A, 154C
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A
Cases
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Dougan v R [2006] NSWCCA 34; (2006) 160 A Crim R 135
- R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
- R v M.A.K, M.S.K [2006] NSWCCA 381; (2006) 167 A Crim R 159
- Ith v R [2013] NSWCCA 280
- Hutchen v R [2015] NSWCCA 101
- RL v R [2018] NSWCCA 274
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518