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Court of Criminal Appeal 11 May 2001

R v Daniels [2001] NSWCCA 181 revised - 18

[2001] NSWCCA 181

Assault & violenceTheft & propertyTraffic & driving
APPEAL AGAINST SEVERITY ROBBERY

Citation: R v Daniels [2001] NSWCCA 181
Court: NSW Court of Criminal Appeal
Date: 11 May 2001
Judge(s): Carruthers AJ; Badgery-Parker AJ

Background

The appellant was tried in the Newcastle District Court on two counts: robbery under s 94 of the Crimes Act 1900, and using an offensive instrument to prevent lawful apprehension under s 33B of the same Act. He pleaded not guilty to both counts at arraignment, but on the second day of trial he entered a guilty plea to the s 33B count. The jury subsequently returned a guilty verdict on the robbery count the same day.

The s 33B offence arose from a high-speed police pursuit along the Pacific Highway after officers identified the appellant driving a stolen vehicle. During the pursuit, the appellant deliberately accelerated into police vehicles and a civilian car to evade arrest, reaching speeds of up to 175 km/h over a distance of approximately 40 kilometres.

At sentencing in March 2000, the District Court imposed four years imprisonment for the robbery (with a three-year non-parole period) and six years imprisonment for the s 33B offence (with a four-year non-parole period), the latter to commence on the expiry of the first sentence. The appellant did not challenge the robbery sentence but sought leave to appeal against the sentence imposed for the s 33B offence.

  • Whether the sentencing judge erred by failing to apply s 439 of the Crimes Act 1900 (now s 22 of the Crimes (Sentencing Procedure) Act 1999), which required the court to take into account a guilty plea when passing sentence.
  • What discount, if any, was appropriate for a guilty plea entered on the second day of trial.
  • Whether special circumstances existed to justify a non-parole period that departed from the standard one-third ratio, given that the s 33B sentence was to be served cumulatively on the earlier robbery sentence.

Decision

The Court of Criminal Appeal found that both the sentencing judge and counsel had overlooked s 439 of the Crimes Act 1900. That provision required a court, when sentencing a person who had pleaded guilty, to take into account both the fact of the plea and the timing of it, and to either reduce the sentence accordingly or provide reasons for not doing so. The omission constituted an error of law that required the Court's intervention, consistent with the principle established in Roos v Director of Public Prosecutions (1994) 34 NSWLR 254.

The Court proceeded to re-sentence the appellant on the s 33B count. It affirmed that offences under s 33B are regarded extremely seriously, particularly where a motor vehicle is used as the offensive instrument, noting that such use can be as dangerous as, or more dangerous than, the discharge of a firearm. The Court accepted that the present case was a very serious example of the offence.

Weighing the late timing of the guilty plea (second day of trial), the Court allowed a discount of approximately six months. The Crown had submitted a lesser discount than the appellant's counsel proposed; the Court settled on six months as appropriate. The Court also identified special circumstances warranting a reduced non-parole period ratio, arising from the fact that the s 33B sentence ran cumulatively on the earlier four-year sentence for robbery.

Orders Made

  • Sentence on the robbery count (first count) confirmed.
  • Leave to appeal granted on the s 33B count (second count).
  • Appeal on the s 33B count allowed; original sentence quashed.
  • Appellant re-sentenced on the s 33B count to five years imprisonment, commencing 2 October 2002 and expiring 1 October 2007.
  • Non-parole period fixed at three years, commencing 2 October 2002 and expiring 1 October 2005.

Key Takeaways

  • Under s 439 of the Crimes Act 1900 (now s 22 of the Crimes (Sentencing Procedure) Act 1999), a sentencing court is required to take into account both the fact of a guilty plea and its timing; failure to do so constitutes an error of law that warrants appellate intervention.
  • A guilty plea entered on the second day of trial attracted only a modest discount of approximately six months, reflecting the late stage at which it was made.
  • The Court of Criminal Appeal confirmed that s 33B offences involving use of a motor vehicle to resist lawful apprehension are treated with particular seriousness, and that the instrument's potential for harm is assessed on the facts of each case.
  • Where a sentence is imposed cumulatively on an earlier sentence, that accumulation can constitute a special circumstance justifying a non-parole period shorter than the standard one-third ratio.
  • The omission of counsel as well as the judge in overlooking s 439 did not prevent the Court from correcting the error on appeal; s 439(3) expressly provides that non-compliance does not invalidate the original sentence, but it does not prevent appellate correction.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B, 94, 439
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 22

Cases
- Roos v Director of Public Prosecutions (1994) 34 NSWLR 254
- R v Barton [2001] NSWCCA 63
- R v Hamilton (1993) 66 A Crim R 575
- R v Perez (Unreported, NSWCCA, 11 December 1991)
- R v Tooth [2000] NSWCCA 482