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Court of Criminal Appeal 12 May 1999

REGINA v HENRY BARBER TRAN SILVER TSOUKATOS KYROGLOU JENKINS [1999] NSWCCA 111 revised - 18

[1999] NSWCCA 111

Also reported as (1999) 46 NSWLR 346 (1999) 106 A Crim R 149
Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING GUIDELINE JUDGMENT INCREASED INCIDENCE OF OFFENCE INCONSISTENCY AND SYSTEMATIC LENIENCY APPROPRIATENESS OF CUSTODIAL SENTENCE

Citation: Regina v Henry Barber Tran Silver Tsoukatos Kyroglou Jenkins [1999] NSWCCA 111
Court: NSW Court of Criminal Appeal
Date: 12 May 1999
Judge(s): Spigelman CJ, Wood CJ at CL, Newman J, Hulme J, Simpson J

Background

The Court of Criminal Appeal heard six Crown appeals and one severity appeal together, all arising from sentences imposed in the District Court for armed robbery under s 97(1) of the Crimes Act 1900 (NSW), with one matter involving the aggravated offence under s 97(2). The Crown submitted that the circumstances warranted the promulgation of a formal guideline judgment for the offence.

All seven offenders had been sentenced at first instance by different District Court judges. The Crown argued that sentencing statistics compiled by the Judicial Commission of New South Wales revealed both systematic leniency and unacceptable inconsistency in the sentences imposed for armed robbery across the State.

The Crown also placed before the Court a range of material not before the original sentencing judges, including crime statistics on the incidence of armed robbery, academic literature on the psychological and physical effects of robbery on victims, and a report prepared by a clinical psychologist. The admissibility of that material in the individual cases was contested.

Legal Issues

  • Whether it was appropriate for the Court of Criminal Appeal to promulgate a guideline judgment for the offence of armed robbery under s 97(1) of the Crimes Act 1900 (NSW)
  • Whether crime statistics, academic literature on victim impact, and a clinical psychologist's report constituted "evidence" within the meaning of the proviso to s 12(1) of the Criminal Appeal Act 1912 (NSW) and s 29A(2) of the Criminal Procedure Act 1986 (NSW), such that they could not be used to increase sentences in the individual appeals
  • What sentencing range or starting point should apply to a commonly recurring category of armed robbery
  • Whether drug addiction, when causally linked to the commission of armed robbery, should be recognised as a mitigating factor

Decision

Issue 1: Appropriateness of a Guideline Judgment

Spigelman CJ (with whom the other members of the Court agreed) confirmed that the Court of Criminal Appeal has authority to promulgate guideline judgments for particular offences. The purpose of such judgments is to foster consistency in sentencing while preserving the sentencing judge's broad discretion to do justice in individual cases. A guideline is not a binding rule: failure to sentence in accordance with a guideline is not, of itself, a ground of appeal, though departures should be explained.

The Judicial Commission's sentencing statistics for s 97(1) offences, covering 835 cases between December 1994 and October 1998, revealed that 18% of offenders received non-custodial sentences, which was inconsistent with the long-established principle that non-custodial sentences should be confined to exceptional circumstances. The statistics also disclosed systematic leniency in the length of custodial sentences and in minimum terms, with 62% of those imprisoned receiving a minimum or fixed term of two years or less. The Court concluded that these statistics justified a guideline judgment.

Issue 2: Admissibility of Crown Material in Individual Cases

The Court held that "evidence" in the proviso to s 12(1) of the Criminal Appeal Act 1912 and in s 29A(2) of the Criminal Procedure Act 1986 is confined to matters going to the commission of the offence or the personal circumstances of the accused. On that basis, crime statistics on the incidence of armed robbery are not "evidence" within those provisions and may be used in the guideline, but not to increase individual sentences.

Academic literature on the general effects of armed robbery on victims falls outside the scope of "evidence" in the statutory provisions. However, the majority of the Court held that such general literature should not be used in individual cases, because the gravity of each case is determined by the effects on the particular victims before the court. Hulme J dissented on this point, taking the view that general victim impact material could be treated as an "other matter" under s 29A(1) and taken into account in individual cases. The Crown conceded that the clinical psychologist's report, prepared specifically for these proceedings, could not be used in the individual cases.

Issue 3: The Guideline for Armed Robbery

The Court identified a commonly recurring category of armed robbery suitable for a guideline, comprising a young offender with little or no criminal history, armed with a weapon such as a knife capable of causing serious injury, with limited planning, a real but limited threat of violence, a victim in a vulnerable position such as a shopkeeper or taxi driver, a small amount taken, and a plea of guilty where the Crown case was strong. Simpson J expressed a preference for a guideline based on conviction after trial, without a guilty plea built in, but concurred in the guideline as proposed.

Sentences for cases of this character, the majority held, should generally fall within a full term of four to five years. Aggravating and mitigating factors will justify sentences outside this range. Hulme J would have set the guideline higher, at a total term of five years with a minimum term of three years except in unusual circumstances, reflecting his view that inadequacy in minimum terms had been a particular deficiency in past practice. Relevant circumstantial factors the Court identified as particular to armed robbery include the nature of the weapon, the vulnerability of the victim, the degree of planning or impulsiveness, the intensity of force or threat, the number of offenders, the amount taken, and the effect on the victim.

Issue 4: Drug Addiction as a Mitigating Factor

The Court unanimously declined to recognise drug addiction, of itself, as a mitigating factor. Spigelman CJ held that drug addiction is relevant to the sentencing exercise as a circumstance that may illuminate matters such as the degree of planning or impulsiveness, but that a causal relationship between addiction and an offence does not automatically produce a lesser sentence. The original decision to use drugs is ordinarily a free choice, and not all people who become addicted resort to violent crime.

Wood CJ at CL identified the relevant principles with greater particularity: the need for funds to support a drug habit is not an excuse and not a matter of mitigation in itself, but the addiction-motivated nature of the offence may be relevant to objective criminality (impulsivity, state of mind) and to subjective circumstances (rehabilitation prospects, whether the addiction was not a voluntary choice). Drug addiction is not analogous to mental abnormality, which may reduce the weight given to general deterrence, because drug dependency does not deprive the offender of the capacity to choose between lawful and criminal conduct in the way that mental disorder may. Hulme J agreed with the Chief Justice and expressly resiled from a contrary remark he had made in an earlier decision. Simpson J, while agreeing that addiction of itself is not a mitigating factor, emphasised that the circumstances underlying the original decision to use drugs, and demonstrated rehabilitation, may be relevant in individual cases, and that sentencing courts should not treat all drug addiction as equally blameworthy.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed its authority to promulgate guideline judgments that foster sentencing consistency without binding sentencing judges: a guideline is not a rule, departure is permissible where justice requires, but unexplained departures should be anticipated to attract appellate scrutiny.
  • For the commonly recurring category of s 97(1) armed robbery described in the judgment, a full term of four to five years was established as the general sentencing range, with individual aggravating and mitigating factors justifying movement outside it. Non-custodial sentences remain available only in exceptional circumstances.
  • Crime statistics and general statistical or academic material do not constitute "evidence" within the meaning of the proviso to s 12(1) of the Criminal Appeal Act 1912 or s 29A(2) of the Criminal Procedure Act 1986; such material may inform a guideline judgment but cannot be used to increase a sentence in an individual appeal.
  • Drug addiction is a relevant circumstance in the sentencing exercise for armed robbery but is not, of itself, a mitigating factor: a causal link between addiction and the offence does not automatically reduce the sentence, and the analogy with mental abnormality, which can reduce the weight given to general deterrence, was expressly rejected.
  • Where a drug offender has a background explaining the path to addiction that diminishes moral culpability for that decision, and where there is demonstrated (not merely theoretical) progress towards rehabilitation, Simpson J noted that rehabilitation may in an appropriate case outweigh retributive and deterrent considerations, consistent with the broader principle of individualised sentencing articulated across the judgment.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated