Citation: Regina v Guthrie [2002] NSWCCA 77 revised - 17/05/2002
Court: NSW Court of Criminal Appeal
Date: 21 March 2002
Judges: Sheller JA, Grove J, Simpson J
Background
The respondent pleaded guilty in the District Court to specially aggravated breaking and entering with intent to steal. In the early hours of 10 February 2001, he and a co-offender reversed a modified utility truck outside a building society in Morisset and attempted to extract an automatic teller machine containing over $90,000. Police, acting on prior surveillance and intercepted calls, had deployed a tactical unit and were waiting.
When police moved in, the respondent attempted to drive away and was stopped by chemical reagent fired into the windscreen. He then resisted arrest in a violent struggle and was found to have a loaded .357 magnum pistol in his waistband, loose ammunition in his pockets, and two loaded assault rifles in the vehicle cabin. The sentencing judge took two further firearm possession offences into account on a Form 1 (a procedural mechanism for dealing with additional charges without recording separate convictions).
The co-offender, O'Shea, was 20 years old with no prior convictions and received two years and nine months with a 12-month non-parole period. The respondent, 27 years old, had a significant prior record including multiple firearms offences. Coolahan DCJ sentenced him to four and a half years with a three-year non-parole period. The Crown appealed the sentence as manifestly inadequate.
Legal Issues
- Whether the original sentence of four and a half years imprisonment was manifestly inadequate for a specially aggravated break-and-enter committed by a heavily armed offender with a significant prior record
- Whether, on resentencing, penalty should be mitigated on the basis that the respondent had been subjected to excessive force by police during his arrest
- What degree of restraint was appropriate in resentencing following a successful Crown appeal, given the relatively lenient sentence imposed on the co-offender against which no Crown appeal was brought
Decision
The Court of Criminal Appeal unanimously found the original sentence manifestly inadequate. Sheller JA described it as difficult to understand how such a sentence could have been arrived at, given the gravity of the offending, the respondent's role as the prime motivator, his heavily armed state, his attempt to access a concealed pistol during arrest, and his extensive prior record for firearms offences.
On the question of police misconduct during arrest, Grove J examined the hospital records and photographic evidence. The hospital X-ray revealed metallic particles in the respondent's jaw consistent with a previous gunshot injury, but there was no medical evidence of injuries beyond what could be expected from an arrest in those circumstances. Grove J declined to conclude from the respondent's complaints and photographs alone that he had been subjected to excessive force, and rejected the submission that penalty should be reduced on that basis.
In fixing the resentence, the Court applied restraint because of the co-offender's lighter sentence, against which no Crown appeal had been brought. Grove J assessed a starting figure of eight years, then reduced it to six and a half years to reflect the guilty plea. Although Grove J expressed hesitation, he accepted the sentencing judge's finding of special circumstances (warranting a departure from the standard non-parole ratio) based on the respondent's lack of access to counselling and psychiatric treatment.
Grove J emphasised that the sentence proposed was considerably less than he would have regarded as appropriate at first instance, with the reduction flowing specifically from the restraint required when resentencing after a successful Crown appeal.
Orders Made
- Crown appeal allowed
- Sentence imposed in the District Court quashed
- Respondent resentenced to six years and six months imprisonment commencing 10 February 2001, with a non-parole period of four years and six months from the same date (first parole eligibility date: 9 August 2005)
Key Takeaways
- A sentence of four and a half years for a heavily armed, planned commercial theft committed by a repeat firearms offender who actively resisted arrest was held to be manifestly inadequate.
- Where a Crown appeal succeeds, the Court of Criminal Appeal applies a principle of restraint in resentencing: the sentence imposed will ordinarily be less than what the appellate court would have imposed at first instance, particularly where a co-offender received a more lenient sentence that was not itself appealed.
- Allegations that arresting police used excessive force, and that this should mitigate sentence, require evidential foundation. Bare complaints and photographic material were insufficient here to establish that the respondent had been punished by the arresting police.
- Parity between co-offenders remained a relevant consideration even where the sentencing judge had explicitly found no parity issues arose. The Court of Criminal Appeal described the co-offender's sentence as "surprisingly light," but treated it as a ceiling that limited the resentence rather than as a benchmark to be justified.
- Under s 44 of the Crimes (Sentencing Procedure) Act, a departure from the standard non-parole ratio may be warranted where a history of inadequate access to counselling or psychiatric treatment constitutes a special circumstance, though the court noted some hesitation in accepting that finding on the facts.
Legislation and Cases Referenced
Legislation:
- s 5D Criminal Appeal Act (Crown appeal ground of inadequate sentence)
- s 44 Crimes (Sentencing Procedure) Act (standard non-parole period proportion and special circumstances)
Cases:
- Cameron v The Queen [2002] HCA 6