Citation: R v Samuel Samuelu; R v Timothy Samuelu [2004] NSWCCA 331
Court: New South Wales Court of Criminal Appeal
Date: 23 September 2004
Judges: Buddin J, Sully J, Shaw J
Background
Two brothers, Samuel and Timothy Samuelu, pleaded guilty in the District Court to multiple offences of armed robbery and malicious wounding with intent to prevent lawful apprehension. The offences were committed between April and June 2002, often in company with a third co-offender, and involved a series of robberies at retail premises across Western Sydney using screwdrivers as weapons. The serious wounding offences arose from an incident on 8 June 2002.
Knight DCJ sentenced both respondents in the District Court on 6 April 2004. Samuel received a total effective sentence of 6.5 years with a non-parole period of 4.5 years, while Timothy received a total effective sentence of 7 years with a non-parole period of 5 years. Timothy's marginally heavier sentence reflected his additional guilty plea.
The Director of Public Prosecutions appealed both sentences to the Court of Criminal Appeal, contending that the sentences imposed were manifestly inadequate.
Legal Issues
- Whether the sentences imposed by Knight DCJ were manifestly inadequate, warranting intervention by the Court of Criminal Appeal
- Whether the structure of the individual sentences, particularly in relation to cumulation and the interaction of multiple terms, contributed to an overall inadequate result
- Whether the residual discretion of the appellate court should be exercised to decline to intervene, notwithstanding a finding of manifest inadequacy
- The appropriate re-sentencing for both respondents, including the application of a "special circumstances" finding affecting the ratio of non-parole period to total term
Decision
Buddin J (with Sully and Shaw JJ agreeing) found that the sentences imposed by the sentencing judge were manifestly inadequate. While acknowledging that Knight DCJ had been aware of the relevant sentencing principles, including those concerning cumulation and overall effect from Pearce v The Queen and related authorities, the structure of the individual sentences had produced an overall result that fell below the range appropriate for offences of this seriousness.
The court noted that no reason had been advanced to justify declining to exercise the residual discretion to intervene, a discretion that appellate courts retain even where error is established. Accordingly, both Crown appeals were allowed and the court proceeded to re-sentence each respondent.
On re-sentencing, the court confirmed the existing sentences for the earlier counts in each case. For Samuel, the sentence on count 5 (malicious wounding with intent to prevent lawful apprehension) was quashed and replaced with a total term of 6 years and a non-parole period of 3 years, commencing 25 December 2006. For Timothy, the sentence on count 6 was quashed and replaced with a total term of 7 years and a non-parole period of 4 years, commencing 16 December 2004.
The court also made a finding of "special circumstances" for each respondent, consistent with the approach taken by the sentencing judge below. This finding allows the court to adjust the standard statutory ratio between the non-parole period and the total sentence where circumstances warrant a longer period of supervised release on parole.
Orders Made
Samuel Samuelu:
- Appeal allowed
- Sentences on counts 1 to 4 confirmed
- Sentence on count 5 quashed; replaced with a non-parole period of 3 years and a total term of 6 years, commencing 25 December 2006, expiring 24 December 2012, with non-parole period expiring 24 December 2009
Timothy Samuelu:
- Appeal allowed
- Sentences on counts 1 to 5 confirmed
- Sentence on count 6 quashed; replaced with a non-parole period of 4 years and a total term of 7 years, commencing 16 December 2004, expiring 15 December 2011, with non-parole period expiring 15 December 2008
Additional direction (both respondents):
- The Registrar was directed to bring each respondent's affidavit to the urgent attention of the Commissioner of Corrective Services, with a recommendation that all proper steps be taken to afford each respondent the opportunity to undertake the rehabilitative courses referred to in his affidavit
Key Takeaways
- Manifest inadequacy in a sentence can arise not only from errors in individual components, but from the way in which multiple sentences are structured and interact to produce an inadequate overall result.
- The Court of Criminal Appeal confirmed that even where a sentencing judge is aware of the relevant principles, an appellate court may still find that the resulting sentences fall outside the appropriate range and allow a Crown appeal.
- A finding of "special circumstances" under the Crimes (Sentencing Procedure) Act 1999 permits departure from the standard non-parole period ratio where the circumstances of the offender justify a longer period of supervised release.
- Where no reason is advanced to exercise the residual discretion against intervening, the appellate court will proceed to re-sentence rather than simply quash and remit.
- Sentences on co-offenders sentenced by different judges are a relevant consideration in the sentencing exercise, as the court had regard to the sentence imposed on the third co-offender, JP, who had been sentenced separately.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 55(2)
- Crimes Act 1900 (NSW), ss 33, 97(1), 97(2), 154A(1)(b)
Cases:
- Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 146
- Cameron v The Queen (2002) 209 CLR 339
- Johnson v The Queen [2004] HCA 15
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- R v AEM (Snr) & Ors [2002] NSWCCA 58
- R v Sharma (2002) 54 NSWLR 300
- R v Thomson & Houlton (2000) 49 NSWLR 383