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8
Court of Criminal Appeal 29 February 2000

Regina v Griggs [2000] NSWCCA 33 revised - 7

[2000] NSWCCA 33

Also reported as [2000] 111 A Crim R 233
Assault & violenceTheft & propertyFirearms & weapons

Citation: Regina v Griggs [2000] NSWCCA 33; (2000) 111 A Crim R 233
Court: New South Wales Court of Criminal Appeal
Date: 29 February 2000
Judge(s): Grove J, Sully J, Simpson J

Background

The respondent, a young man aged nineteen at the time of the offence, participated in an armed robbery of a small convenience store at Anna Bay with two co-offenders. The group had planned the robbery earlier that day and equipped themselves with balaclavas, gloves, and kitchen knives before entering the store just before closing time. Two staff members, one aged twenty-one and one a sixteen-year-old weekend worker, were forced to the ground and had their wrists bound with tape while the offenders stole from the premises.

The respondent was sentenced in the District Court by English DCJ, who granted a recognisance (a form of conditional release without a period of custody). The Crown appealed that sentence to the Court of Criminal Appeal, arguing it was manifestly inadequate in light of the seriousness of the offence and the guideline judgment in R v Henry.

By the time the appeal was heard, the respondent had made considerable progress toward rehabilitation, including steady employment as a painter, cessation of drug use, and repayment of private legal fees to his stepfather.

  • Whether the District Court erred in imposing a recognisance for an armed robbery of this objective seriousness, given the sentencing guidelines established in R v Henry
  • If error was established, whether the Court of Criminal Appeal should exercise its residual discretion to dismiss the Crown appeal despite that error
  • If re-sentencing was required, what sentence was appropriate having regard to both the objective gravity of the offence and the respondent's rehabilitation

Decision

All three judges agreed that the District Court had erred in imposing only a recognisance. The offence, involving premeditation, weapons, and the restraint of two victims in a relatively isolated location, was objectively serious, and the guidelines in R v Henry indicated that such offending ordinarily required a custodial response of meaningful weight. The recognisance was found to be both misconceived in principle and inappropriate on the facts.

The judges diverged on the appropriate remedy. Grove J took the most severe view, concluding that full-time imprisonment was called for and that even periodic detention should have been imposed for the maximum available period of three years. Sully J agreed that some custodial penalty was necessary but was prepared to impose eighteen months of periodic detention, giving substantial weight to the respondent's rehabilitation without leaving the recognisance in place.

Simpson J, while agreeing that error had been established and that a community service order would at minimum have been warranted at the time of sentencing, concluded that the respondent's genuine and ongoing rehabilitation justified the exercise of the Court's residual discretion to dismiss the Crown appeal rather than increase the sentence.

The majority view, comprising Grove J and Sully J, prevailed. The recognisance was set aside and the respondent was re-sentenced to a fixed term of eighteen months imprisonment to be served by way of periodic detention.

Orders Made

  • Crown appeal against sentence upheld
  • Recognisance granted in the District Court set aside
  • Respondent re-sentenced to a fixed term of 18 months imprisonment, to be served by way of periodic detention

Key Takeaways

  • The Court of Criminal Appeal confirmed that armed robbery involving premeditation, weapons, and the physical restraint of victims ordinarily demands a custodial sentence, consistent with the guidelines established in R v Henry.
  • A recognisance (conditional release without custody) was found to fall well below the appropriate sentencing range for offending of this objective seriousness, regardless of favourable subjective circumstances.
  • Significant post-offence rehabilitation, while a weighty mitigating factor, did not automatically justify the exercise of residual discretion to dismiss a Crown appeal where the original sentence departed substantially from established guidelines.
  • The three judges reached different conclusions on the discretion question, illustrating that where error is clear but rehabilitation is genuine and substantial, the appropriate remedy on a Crown appeal remains a matter of contested judgment within the Court.
  • Under the R v Henry guideline framework, community protection and the legitimate expectations of victims and the broader community are relevant considerations that courts must balance against subjective factors when sentencing for armed robbery.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Sentencing Act 1989 (NSW)

Cases:
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 (guideline judgment on armed robbery sentencing)
- R v Jurisic (1998) 45 NSWLR 209
- R v Farah (NSWCCA, unreported, 11 December 1998)
- R v Silver [1999] NSWCCA 108
- R v Tsoukatos (unreported)
- R v Kyroglou [1999] NSWCCA 106
- R v Henry and Barber [1999] NSWCCA 107
- R v Govinden [1999] NSWCCA 118
- R v Pham (1991) 55 A Crim R 128
- R v Tran [1999] NSWCCA 109