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Court of Criminal Appeal 19 March 2003

Regina v BOA MORTE [2003] NSWCCA 75 revised - 4

[2003] NSWCCA 75

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL ROBBERY IN COMPANY ERROR OF LAW APPLICATION OF HENRY GUIDELINES

Citation: Regina v BOA MORTE [2003] NSWCCA 75
Court: NSW Court of Criminal Appeal
Date: 19 March 2003
Judge(s): Shaw J; Studdert J

Background

The appellant pleaded guilty in the District Court to robbery in company under s 97(1) of the Crimes Act 1900. The offence involved the appellant and a co-offender confronting a victim near Central Railway Station in Sydney in the early hours of the morning, demanding money, and assaulting the victim when he resisted having his wallet taken.

A separate assault occasioning actual bodily harm, committed approximately three months later while the appellant was on bail, was listed on a Form 1 to be taken into account at sentencing. That assault involved a group attack on a pedestrian, causing injuries significant enough to require hospitalisation.

Bell DCJ sentenced the appellant to a total head sentence of 32 months with a non-parole period of 20 months, calculated by first adding a separate six-month term for the Form 1 offence to the three-year head sentence, then applying a discount of just under 25 per cent for guilty pleas. The appellant appealed, arguing that imposing a discrete sentence for the Form 1 offence was legally wrong and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred in law by imposing a separate sentence for the offence listed on the Form 1, rather than treating it as a factor increasing the penalty for the principal offence
  • Whether the sentencing judge incorrectly assessed the objective gravity of the robbery offence
  • Whether the judge overstated the offender's criminality and failed to properly consider subjective circumstances, including any mitigating factors under s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge misapplied the guideline judgment in R v Henry (1999) 46 NSWLR 346
  • Even if error was established, whether some other sentence was "warranted in law and should have been passed" under s 6(3) of the Criminal Appeal Act 1912

Decision

The Court of Criminal Appeal agreed that the sentencing judge had erred in law on the first ground. Consistent with the guideline issued in Attorney General's Application No. 1 of 2002 [2002] NSWCCA 518, a court sentencing for a principal offence must not impose a separate discrete penalty for a Form 1 offence. The proper approach is to sentence only for the principal offence, while giving greater weight to personal deterrence and retribution as a reflection of the admitted course of conduct. The sentencing judge's method of calculating an additive six-month term was therefore incorrect.

However, the Court found that identifying that error did not automatically lead to intervention. Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal may only intervene where it forms a positive opinion that some other sentence was warranted in law and should have been passed. The Court concluded that the overall sentence imposed, when assessed against the Henry guidelines for robbery in company, placed the offender in the lowest available sentencing category. That assessment was reasonably open to the sentencing judge, and was in some respects favourable to the appellant.

The Court rejected the submission that the judge fundamentally misapplied Henry. While the judge did not apply that guideline in a strict or literal sense, the Court found that treating it as a relevant consideration without mechanically applying it was an appropriate approach. No error of sufficient magnitude was established to justify re-sentencing, and the appeal was dismissed despite leave being granted.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court must not impose a separate, discrete penalty for a Form 1 offence. The correct approach, confirmed in R v Barton and the Attorney General's Application No. 1 of 2002, is to sentence only for the principal offence, using the Form 1 material to give greater weight to personal deterrence and retribution within the constraints of the principal offence's maximum penalty and the totality principle.

  • Establishing a legal error in the sentencing process is a necessary but not sufficient condition for the Court of Criminal Appeal to intervene. Under s 6(3) of the Criminal Appeal Act 1912, the Court must form a positive opinion that some other sentence was "warranted in law and should have been passed."

  • In dismissing the appeal, the Court confirmed that a guideline judgment such as Henry need not be applied mechanically. Treating it as a relevant consideration while assessing overall criminality is an acceptable approach, provided the sentencing discretion is exercised within recognised bounds.

  • Where the overall sentence falls within a range reasonably open to the sentencing judge, the Court of Criminal Appeal will not intervene merely because an error in the method of calculation has been identified.

  • The Henry guideline for robbery in company sets a range of four to five years for a young offender with little criminal history, a lethal weapon, limited planning, threats of violence, a vulnerable victim, small amounts taken, and a guilty plea. The absence of a lethal weapon in this matter meant the sentencing judge assessed the offence at the lowest category of the available range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59, 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(i), 33(3), 44(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- R v Barton (2002) 121 A Crim R 185
- R v Henry (1999) 46 NSWLR 346
- R v Simpson (2001) 53 NSWLR 704