Citation: R v Aiken [2001] NSWCCA 40 revised - 30/03/2001
Court: NSW Court of Criminal Appeal
Date: 14 February 2001
Judge(s): James J, Whealy J
Background
The appellant, a 19-year-old man, pleaded guilty in the District Court to three offences: robbery in company, being carried in a conveyance without the owner's consent, and assault with intent to rob whilst armed. The offences involved two separate service station robberies committed on 7 and 9 February 1999, carried out with co-offenders who were armed with weapons including a knife and a wheel brace. The appellant was unarmed on both occasions but participated as part of a coordinated group.
Following his arrest but before sentencing, the appellant spent over seven months in a residential drug rehabilitation program run by the Teen Challenge organisation. He was eventually asked to leave the program in November 1999 for disciplinary infractions, though the sentencing judge accepted evidence that these did not involve drugs or anything of a serious nature.
Judge O'Reilly sentenced the appellant in December 1999 to penal servitude of four years with a two-year minimum on the first count, a six-month fixed term on the second, and a two-year fixed term on the third. The appellant sought leave to appeal, representing himself after legal aid was refused.
Legal Issues
- Whether the sentencing judge erred in describing the appellant as an "armed robber" when he was personally unarmed
- Whether insufficient weight was given to the appellant's age and level of contrition
- Whether the sentencing judge gave insufficient consideration to the appellant's rehabilitation potential
- Whether a factual error in the pre-sentence report about why the appellant left the Teen Challenge Program affected the sentence
- Whether a parity argument arose from the sentence imposed on co-offender Campos
- Whether the sentencing judge erred by failing to give credit for time spent in the residential rehabilitation program as a form of quasi-custody
Decision
The Court of Criminal Appeal rejected all five grounds raised by the appellant in his written submissions. On the "armed robber" description, James J was satisfied the sentencing judge used the phrase in reference to the charges, not as a finding that the appellant was personally armed. The judge's remarks on sentence demonstrated he was well aware of which co-offenders had physically carried weapons.
The grounds relating to age, contrition, and rehabilitation potential were also dismissed. The sentencing judge had expressly addressed all of these matters in his remarks. The pre-sentence report ground similarly failed because, even if the report contained a misrepresentation, the sentencing judge had heard evidence correcting it and sentenced on the correct factual basis. The parity argument based on co-offender Campos's sentence could not succeed because Campos had only participated in the second robbery, not both sets of offences.
However, in the course of oral argument a further ground emerged that the appellant had not raised in writing. The court identified that the sentencing judge had not credited the appellant for the seven months spent in the Teen Challenge residential program as a period of quasi-custody. Relying on principles from the earlier decision in Cartwright, James J held that time spent in such a program could, in appropriate circumstances, entitle an offender to a sentencing discount.
The Court concluded that the sentencing discretion had miscarried because a relevant matter had been overlooked. It allowed the appeal, quashed the original sentences, and re-sentenced the appellant with a four-month credit applied across the terms imposed on the first and third counts, resulting in modestly reduced sentences.
Orders Made
- Leave to appeal granted
- Appeal against sentence allowed
- Sentences imposed by O'Reilly DCJ on 3 December 1999 quashed
- In substitution, the appellant was sentenced as follows:
- Count 1 (robbery in company): imprisonment for 3 years and 8 months, with a non-parole period of 1 year and 8 months commencing 3 December 1999 and expiring 2 August 2001; additional term of 2 years
- Count 2 (being carried in conveyance without consent): fixed term of 6 months commencing 3 December 1999 and expiring 2 June 2000
- Count 3 (assault with intent to rob whilst armed): fixed term of 1 year and 8 months commencing 3 December 1999 and expiring 2 August 2001
- Earliest date of eligibility for release on parole: 3 August 2001
Key Takeaways
- Time spent in a residential drug rehabilitation program prior to sentencing can, in appropriate circumstances, qualify as quasi-custody entitling an offender to a sentencing discount, consistent with the principles stated in Cartwright.
- A sentencing court's failure to take into account such a period of quasi-custody constitutes an error of principle that enlivens appellate intervention and requires re-sentencing.
- Where a sentencing judge has received evidence at the sentencing hearing correcting a factual error in a pre-sentence report, and has sentenced on the correct factual basis, the existence of the error in the report does not constitute a ground of appeal.
- A parity argument based on a co-offender's sentence will not succeed where that co-offender participated in only some of the offences for which the appellant is being sentenced.
- An offender who is personally unarmed may nonetheless be properly convicted and sentenced for an offence of assault with intent to rob whilst armed, where the offender acted in concert with armed co-offenders pursuant to a common plan.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company; assault with intent to rob whilst armed)
- Crimes Act 1900 (NSW), s 154A(1)(b) (being carried in a conveyance without the owner's consent)
Cases:
- R v Cartwright (referred to for the principle that time spent in quasi-custody, including residential rehabilitation programs, may attract a sentencing discount; full citation not provided in the judgment)