Citation: Regina v Henry; Barber; Tran; Silver; Tsoukatos; Kyroglou; Jenkins [1999] NSWCCA 111; (1999) 46 NSWLR 346; 106 A Crim R 149
Court: NSW Court of Criminal Appeal
Date: 12 May 1999
Judges: Spigelman CJ, Wood CJ at CL, Newman J, Hulme J, Simpson J
Background
Seven matters involving armed robbery offences under s 97 of the Crimes Act 1900 (NSW) were heard together by a five-judge bench of the Court of Criminal Appeal. Six were Crown appeals against sentence and one was a severity appeal brought by an offender. The offenders had each been sentenced in the District Court by different judges, producing a range of outcomes.
The Crown used the occasion to invite the Court to issue a guideline judgment for the offence of armed robbery. Sentencing statistics compiled by the Judicial Commission of New South Wales suggested both inconsistency and systematic leniency across the District Court's sentencing practice for this offence.
The Court accepted that invitation, making this one of the early guideline judgments issued by the NSW Court of Criminal Appeal following its earlier decision in Jurisic (1998).
Legal Issues
- Whether it was appropriate for the Court of Criminal Appeal to promulgate a guideline judgment for armed robbery under s 97(1) and s 97(2) of the Crimes Act 1900 (NSW)
- Whether sentencing statistics and related crime data constituted "evidence" within the meaning of s 12 of the Criminal Appeal Act 1912 (NSW) and s 29A of the Criminal Procedure Act 1986 (NSW)
- What type of penalty (custodial or otherwise) was appropriate for armed robbery
- What sentencing range or starting point should apply to a common or representative category of armed robbery
- What role drug addiction should play in the sentencing exercise for armed robbery
Decision
On the appropriateness of issuing guidelines
The Court confirmed that an appellate court's power to issue guideline judgments is well established, with the purpose of fostering consistency in sentencing. A guideline does not create a rule, and a failure to follow a guideline is not itself a ground of appeal. The sentencing statistics revealed both inconsistency across sentencing judges and a pattern of systematic leniency, which together justified the Court's intervention by way of a guideline.
On the use of crime statistics as "evidence"
The Court held that the word "evidence" in s 12 of the Criminal Appeal Act 1912 and s 29A of the Criminal Procedure Act 1986 is confined to matters going to the commission of the offence or the personal circumstances of the accused. Criminal statistics on the incidence of armed robbery, including police data, court data, and victim surveys, did not fall within that definition. Hulme J delivered separate observations on this issue. Academic literature on the physical and psychological effects of the offence was likewise found not to be material the Court should use in the individual cases before it, since the gravity of each case turns on effects on the particular victims.
On the sentencing guideline for armed robbery
The Court characterised armed robbery as a crime against persons, not merely against property. The fear it engenders and its lasting effects on victims make it a serious offence requiring condign punishment. Non-custodial sentences should be imposed only in exceptional circumstances. The statistics showed this principle had not been consistently applied.
The Court identified a representative or "common type" category of armed robbery defined by seven characteristics: a young offender with little or no criminal history; a weapon such as a knife capable of killing or serious injury; limited planning; limited actual violence but a real threat of it; 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. For offences within this category, the appropriate range for the full term of imprisonment was generally four to five years, with aggravating and mitigating factors capable of moving a sentence outside that range. Simpson J dissented on the inclusion of a guilty plea in defining the category. Hulme J expressed the guideline as requiring a total term of five years and, except in unusual circumstances, a minimum term of three years.
On drug addiction and sentencing
The Court acknowledged that drug addiction is a factor in many armed robbery cases. The majority view, articulated by Wood CJ at CL, was that sentencing must remain flexible enough to accommodate all relevant circumstances. Simpson J elaborated that where two conditions are met, general deterrence and retribution may yield to rehabilitation: first, a background explaining the offender's decision to use drugs that diminishes moral culpability; and second, demonstrated progress toward rehabilitation. General deterrence, however, was characterised as a very significant factor in armed robbery sentencing, with the observation that the prevalence of drug-motivated offending supports rather than weakens the emphasis on deterrence.
Orders Made
No orders were made in this decision.
Key Takeaways
- A guideline judgment for armed robbery was warranted where sentencing statistics revealed both inconsistency and systematic leniency across the District Court, with non-custodial sentences being imposed in circumstances that should have been treated as exceptional.
- For a representative category of armed robbery, the Court of Criminal Appeal set a sentencing range of four to five years for the full term of imprisonment, with that range functioning as a starting point subject to adjustment for aggravating and mitigating factors.
- Criminal statistics and victim survey data do not constitute "evidence" within the meaning of s 12 of the Criminal Appeal Act 1912 or s 29A of the Criminal Procedure Act 1986, as those provisions are limited to matters going to the commission of the offence or the personal circumstances of the accused.
- Armed robbery is characterised as a crime against persons rather than property, making non-custodial sentences appropriate only in exceptional circumstances.
- Drug addiction does not automatically reduce the significance of general deterrence in armed robbery sentencing; rehabilitation may displace deterrence as the primary sentencing objective only where the offender can demonstrate both a mitigating background to the addiction and actual progress toward rehabilitation.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 97(1), 97(2)
- Criminal Appeal Act 1912 (NSW), s 12
- Criminal Procedure Act 1986 (NSW), s 29A
- Criminal Procedure Amendment (Sentencing Guidelines) Act 1998 (NSW)
- Sentencing Act 1989 (NSW)
- Evidence Act 1995 (NSW)
- Crimes Act 1914 (Cth)
- Criminal Code 1899 (Qld)
- Criminal Law Consolidation Act 1925 (SA)
- Statutes Amendment (Truth in Sentencing) Act 1994 (SA)
- Sentencing Act 1995 (WA)
Key Cases
- R v Jurisic (NSWCCA, 12 October 1998)
- Lowe v The Queen (1994) 154 CLR 606
- Norbis v Norbis (1986) 161 CLR 513
- Veen v The Queen (No 2) (1987-88) 164 CLR 465
- Hallocoglu (1991) 29 NSWLR 67
- Beldan (1986) 21 A Crim R 159
- Roberts (1994) 73 A Crim R 306
- Ellis (1993) 68 A Crim R 449
- Police v Cadd (1997) 94 A Crim R 466
- Bini (1994) 68 ALJR 859
- McDonnell (1997) 114 CCC (3d) 433
- R v Waldron (NSWCCA, 3 March 1994)
- R v Lawson (NSWCCA, 12 December 1997)
- R v Lattouf (NSWCCA, 12 December 1996)
- R v Hayes (1987) 29 A Crim R 452
- R v Fabian (1992) 64 A Crim R 365
- R v Osenkowski (1982) 30 SASR 212
- Various English, New Zealand, Hong Kong, Canadian, Western Australian, South Australian and Queensland armed