Citation: R v Berrell [2003] NSWCCA 85
Court: NSW Court of Criminal Appeal
Date: 27 March 2003
Judge(s): Smart AJ; Studdert J
Background
The applicant pleaded guilty in the District Court to five counts of aggravated robbery and one count of aggravated armed robbery. The head count on the armed robbery also took into account, via a Form 1, six further aggravated armed robberies, one aggravated assault with intent to rob, one aggravated robbery, and three common assaults. The offences were committed across ten separate incidents between May and July 2000, predominantly targeting small retail businesses including pharmacies, pizza stores, and fast food outlets.
In each incident, the applicant used the same replica pistol to threaten staff and customers. Some incidents involved multiple victims, which accounted for the total number of charges exceeding the number of incidents. The applicant entered guilty pleas on arraignment in December 2001, and the sentencing judge applied a discount for the early plea.
The applicant, who appeared in person, sought leave to appeal the length of the sentences imposed by Sides DCJ in the District Court, arguing that his subjective circumstances warranted a more lenient outcome.
Legal Issues
- Whether the sentences imposed for multiple aggravated armed robberies were manifestly excessive having regard to the objective gravity of the offending.
- Whether the applicant's subjective circumstances, including personal background and motivation for the offending, warranted a reduction in the sentences imposed.
- Whether the sentencing judge correctly applied principles of concurrency and totality when dealing with a large number of serious offences arising from multiple incidents.
Decision
The Court of Criminal Appeal found no error in the approach taken by Sides DCJ. The sentencing judge had correctly identified appropriate individual sentences for each offence and then properly considered questions of concurrency and totality. Applying a broad overall view, the applicant effectively received a head sentence of approximately one year per serious incident across the ten robbery incidents, with a total non-parole period of six years and eight months.
The Court rejected the submission that the applicant's personal circumstances provided any meaningful mitigation. The applicant had argued that he was in some sense also a victim, given the influence of a woman he sought to assist financially through the proceeds of the robberies. Smart AJ dismissed this emphatically, noting that the need to assist another person provides no justification or excuse for repeatedly threatening shopkeepers and their staff at gunpoint.
The Court acknowledged that considerably higher sentences could have been imposed, and that the sentencing judge had already attributed significant weight to the applicant's subjective features. The sentences were described as proportional to the high degree of criminality involved and consistent with sentences in comparable cases involving large numbers of armed robberies.
Leave to appeal was granted given the length and gravity of the sentences, but the appeal was dismissed.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the objective gravity of multiple serious armed robberies can properly outweigh even genuine subjective mitigating factors.
- A financial or personal motivation for offending, including a desire to assist another person, does not constitute justification or excuse and does not reduce the seriousness of repeated armed robberies.
- Where a large number of serious offences arise from multiple discrete incidents, a sentencing court must apply principles of concurrency and totality, but those principles do not compel a sentence that fails to reflect the true extent and gravity of the criminality.
- The Court confirmed that sentences in this range were consistent with comparable cases, reinforcing that the benchmark for serial armed robbery is a stern one even where an early guilty plea is given appropriate weight.
- No error is established in sentencing simply because a different judge might have imposed lighter sentences; the question is whether the sentences were within the appropriate range, not whether they were the minimum available.
Legislation and Cases Referenced
No specific legislation or cases were cited in the metadata or the judgment text provided.