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21
Court of Criminal Appeal 28 September 2020

Lee v R

[2020] NSWCCA 244

Theft & property
CRIME APPEALS APPEAL AGAINST SENTENCE NOTIONAL ACCUMULATION APPEAL ALLOWED APPLICANT RE ‑ SENTENCED

Citation: Lee v R [2020] NSWCCA 244
Court: NSW Court of Criminal Appeal
Date: 28 September 2020
Judges: Payne JA, Beech-Jones J, Fagan J

Background

The applicant, an 18-year-old at the time of the offending, pleaded guilty in the District Court to two counts of robbery in company under s 97(1) of the Crimes Act 1900. A third robbery offence was taken into account on a Form 1 (a list of additional charges considered at sentencing but not separately sentenced). All three offences arose from a single incident at the Erina Fair Shopping Centre in June 2018, where the applicant and co-offenders surrounded a stationary car containing three victims and robbed its occupants.

During the incident, the applicant entered the rear of the vehicle, pointed a knife at one victim's neck, demanded and received a watch and hat, and separately held a knife close to another victim's body while demanding her property (she refused). A co-offender used a baseball bat to rob the third victim. The entire episode occurred in close succession as part of the same criminal enterprise.

The District Court sentenced the applicant to an aggregate term of 5 years imprisonment with a non-parole period of 3 years. The applicant sought leave to appeal on the sole ground that the aggregate sentence was manifestly excessive.

  • Whether the aggregate sentence of 5 years was manifestly excessive having regard to the totality principle
  • Whether the sentencing judge's approach to notional accumulation adequately reflected the fact that all offences were committed simultaneously as part of the same criminal episode
  • Whether, if the sentence was set aside, the sentencing discretion should be re-exercised and on what basis

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, setting aside the original sentence. Beech-Jones J (with Payne JA and Fagan J agreeing) identified the central problem as the sentencing judge's approach to notional accumulation. Under aggregate sentencing, the court must specify indicative sentences for each offence and then determine how much of each notional sentence is to be served concurrently or cumulatively. Here, the sentencing judge had treated the notional commencement of one sentence as two years after the other, which the Court found was a method of accumulation more appropriate to entirely separate offending than to multiple robberies committed almost simultaneously on occupants of the same car.

Although the robberies involved multiple victims, justifying some degree of accumulation, the extent of the notional accumulation adopted did not adequately reflect the totality principle. The offences were part of a single criminal endeavour committed in an instant, and the resulting aggregate sentence failed to give sufficient weight to their temporal and circumstantial unity.

In re-exercising the sentencing discretion, the Court adopted the District Court's factual findings, including the applicant's difficult personal history: a dysfunctional childhood involving parental drug use, mental health issues, removal from his mother's care at age 12, neglect, exposure to violence, sexual abuse, and his own substance abuse from age 16. The Court also noted that material before the Court of Criminal Appeal revealed the applicant had been working diligently in custody and acquiring skills, warranting a slightly more optimistic assessment of his prospects of rehabilitation than the sentencing judge had adopted. Special circumstances (justifying a longer parole period relative to the non-parole period) were maintained.

The Court noted that sequence 3, which was accompanied by a Form 1 offence, warranted a higher indicative sentence than sequence 4, even though the sentencing judge had originally assigned them equal indicative sentences. This was because sequence 4 involved the applicant personally threatening a victim, while in sequence 3 the physical threat was made by a co-offender. These matters were reflected in the revised indicative sentences.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Original sentence imposed on 25 July 2019 set aside
  • Aggregate term of imprisonment of 4 years, commencing 27 September 2018 and expiring 26 September 2022, imposed
  • Non-parole period of 2 years set, expiring 26 September 2020
  • Earliest parole eligibility date specified as 27 September 2020
  • Indicative sentences specified: 2 years and 8 months for sequence 3 (accompanied by Form 1 offence); 2 years and 2 months for sequence 4

Key Takeaways

  • Where multiple offences are committed simultaneously as part of a single criminal episode, the totality principle requires that notional accumulation under an aggregate sentence reflect that close connection; a level of accumulation suited to entirely separate offending will not be appropriate.
  • Under the aggregate sentencing regime in the Crimes (Sentencing Procedure) Act 1999, courts must specify indicative sentences for each individual offence so that the extent of notional accumulation and the application of totality can be accurately assessed.
  • A Form 1 offence, although not separately sentenced, is a relevant factor in determining the indicative sentence for the principal offence with which it is associated.
  • Positive progress in custody, where evidenced by material before the appellate court, can warrant a modestly more optimistic assessment of rehabilitation prospects than was available to the original sentencing judge.
  • The guideline in R v Henry (1999) 46 NSWLR 346, which identifies a range of 4 to 5 years for robberies in company with certain characteristics, remains relevant but must be applied alongside a genuine totality analysis when multiple offences arise from the same episode.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32(1), 44(2A), 53A(2)(c)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- R v Henry (1999) 46 NSWLR 346
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 27
- Hili v The Queen; Jones v The Queen 242 CLR 520; [2010] HCA 45
- Beale v R [2015] NSWCCA 120
- BJS v R [2013] NSWCCA 123
- JM v R [2014] NSWCCA 297
- Martin v R [2014] NSWCCA 124
- PD v R [2012] NSWCCA 242
- R v Brown [2012] NSWCCA 199