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Court of Criminal Appeal 11 June 2020

Hawat v R

[2020] NSWCCA 121

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE APPEAL DISMISSED

Citation: Hawat v R [2020] NSWCCA 121
Court: NSW Court of Criminal Appeal
Date: 11 June 2020
Judges: R A Hulme J (with Fagan J and Hidden AJ agreeing)

Background

The applicant was sentenced in the District Court at Campbelltown in July 2019 for three counts of robbery whilst armed with an offensive weapon, all committed on Sydney metropolitan trains over a period of two weeks in October 2017. The sentencing judge imposed an aggregate sentence of 6 years and 6 months with a non-parole period of 4 years, reflecting a 25% reduction for early pleas of guilty. Three further offences, including a fourth armed robbery, a fraud, and a weapons possession offence, were taken into account on a Form 1 document.

The applicant's personal circumstances were significant. At the time of the offences, he was 33 years old, on bail, and had a substantial criminal history including prior armed robbery convictions. The sentencing judge accepted that the applicant had schizophrenia, an intellectual disability, and a long history of drug addiction. He found those features reduced the weight of general deterrence but increased the weight of specific deterrence and community protection.

The applicant sought leave to appeal on a single ground: that the sentencing judge had misapplied the guideline judgment in R v Henry (1999) 46 NSWLR 346.

  • Whether the sentencing judge erroneously conflated the R v Henry guideline with the concept of a "starting point," effectively using it as the anchor for sentence rather than as a check or guide.
  • Whether the structure of the sentencing remarks, specifically the sequence in which the guideline, objective seriousness, and subjective matters were discussed, demonstrated a reasoning error.
  • Whether the weight given to the R v Henry guideline should have been reduced in light of the applicant's mental illness and cognitive deficit.

Decision

The Court of Criminal Appeal rejected all three contentions and dismissed the appeal.

On the central ground, Hulme J found that the sentencing judge's remarks did not reveal any conflation of the R v Henry guideline with a fixed starting point. The judge had discussed the guideline alongside references to general sentencing principles and the objective seriousness of the offences, without stating or implying that the guideline figure represented a floor from which adjustments were made. The mere fact that the guideline was mentioned before the subjective material did not establish that the judge applied it as a starting point.

Hulme J reaffirmed established authority that the R v Henry guideline operates as a check, guide, or sounding board rather than as a rigid benchmark. Treating the guideline as a starting point, or as something that could only be departed from in exceptional circumstances, would be inconsistent with Henry itself and with the Court's subsequent treatment in R v Whyte (2002) 55 NSWLR 252. The sequence in which a judge addresses sentencing considerations in written remarks does not necessarily reflect the sequence of reasoning used to arrive at the sentence.

The argument that the guideline's weight should have been diminished because of the applicant's mental illness and cognitive deficit was not raised before the sentencing judge. The Court also found no apparent error in the way those features were addressed below, and accordingly rejected this contention as well.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • The R v Henry guideline for armed robbery operates as a check, guide, or sounding board in the sentencing process; it is not a starting point to which adjustments are made, and departure from it does not require exceptional circumstances.
  • The structure of sentencing remarks does not necessarily reveal the sequence of judicial reasoning; a judge's discussion of the guideline before subjective matters does not, of itself, establish that the guideline was used as an anchor.
  • No error was established merely because the sentencing judge addressed objective seriousness (including reference to the guideline) before turning to subjective factors, provided the remarks contained no express or implicit suggestion that a starting-point methodology was being applied.
  • Appellate arguments not advanced before the sentencing court face significant obstacles; the contention that the Henry guideline deserved reduced weight due to the applicant's mental illness and cognitive deficit was rejected in part because it had not been raised below.
  • In dismissing the appeal, the Court of Criminal Appeal affirmed the broader principle, drawing on R v Whyte, that individualised justice and consistency must be balanced when applying guideline judgments in sentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 114, 115, 192E(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175
- Fedele v R [2015] NSWCCA 286
- Grant v R [2014] NSWCCA 67
- Kelly v R [2017] NSWCCA 82
- Legge v R [2007] NSWCCA 244
- McDonald v R [2015] NSWCCA 280
- Tuncbilek v R [2020] NSWCCA 30
- Yildiz v R [2020] NSWCCA 69