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Court of Criminal Appeal 22 June 2001

Regina v Hughes [2001] NSWCCA 264 revised - 17

[2001] NSWCCA 264

Assault & violenceTheft & property

Citation: Regina v Hughes [2001] NSWCCA 264 revised - 17/07/2001
Court: NSW Court of Criminal Appeal
Date: 22 June 2001
Judge(s): Simpson J; Smart AJ

Background

The applicant, a young man aged 18 at the time of the offence, pleaded guilty to armed robbery under s 97(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. He also asked that a further offence of being a passenger in a stolen conveyance be taken into account. The offending involved travelling to a shopping centre with three companions, arming himself with a large spanner, and participating in a coordinated smash-and-grab robbery of a jewellery store in which approximately $250,000 worth of jewellery was taken. A co-offender held staff at knifepoint during the robbery.

The applicant was apprehended shortly after the offence, and all jewellery was recovered. The sentencing judge in the District Court, applying the guideline judgment in R v Henry, imposed a total sentence of four years with a non-parole period of three years. The applicant did not challenge the total term but sought leave to appeal against the non-parole period.

The appeal turned on whether the sentencing judge had adequately considered, and properly refused, a finding of "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, which permits a court to set a non-parole period of less than three-quarters of the total sentence where such circumstances are established.

  • Whether the sentencing judge erred by failing to find special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 justifying a non-parole period shorter than three-quarters of the total sentence.
  • Whether the sentencing judge's failure to record reasons for declining to find special circumstances constituted error in the sentencing process.
  • Whether the evidence before the sentencing judge compelled a finding of special circumstances given the applicant's age, background, and rehabilitation needs.

Decision

Simpson J held that the sentencing judge's single statement that he did not find special circumstances was wholly insufficient to satisfy the statutory obligation to record reasons under s 44(2). While the bare statement provided some evidence that the judge had turned his mind to the question, it fell well short of an adequate explanation, particularly in the face of substantial material that would have justified a finding of special circumstances.

Her Honour observed that where evidence capable of establishing special circumstances is before the sentencing court and no finding is made, a failure to explain that refusal tends to suggest the issue was not adequately considered. Simpson J cited R v Bo Too and Maiereniki and R v Gallagher in support of this principle. She went further, expressing the view that even had proper reasons been given, the evidence was so compelling that a refusal to find special circumstances may itself have constituted discretionary error.

The relevant circumstances included the applicant's youth (19 at the time of sentencing), a deeply troubled upbringing involving parental separation, relocation, racial violence, sexual abuse at age eight, significant alcohol dependence, and expert opinion identifying a genuine need for extended supervision, counselling, and support. His prior criminal record was minimal.

Smart AJ agreed in the orders but preferred to found his decision on the unreasonable exercise of the sentencing judge's discretion, citing Thornberry v The Queen. He regarded the failure to find special circumstances, given the weight of the material before the court, as not fairly open to the judge. Both judges agreed the non-parole period should be reduced from three years to two years, preserving the total sentence of four years.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence quashed.
  • Sentence substituted: four years imprisonment with a non-parole period of two years.

Key Takeaways

  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, where a sentencing court declines to find special circumstances despite evidence capable of supporting such a finding, a bare statement of refusal is insufficient to discharge the obligation to record reasons.
  • A failure to explain the rejection of special circumstances, in the presence of compelling evidence, can itself constitute error in the sentencing process, as the Court of Criminal Appeal confirmed by applying R v Bo Too and Maiereniki and R v Gallagher.
  • Simpson J left open, without deciding, the broader proposition that a refusal to find special circumstances may independently constitute discretionary error where the supporting evidence is particularly strong.
  • Smart AJ's concurring judgment demonstrates that the same result can be reached by characterising the non-parole period determination as an unreasonable exercise of discretion, without necessarily resting on the inadequacy of reasons alone.
  • Relevant factors pointing toward special circumstances can include the offender's youth, significant personal disadvantage, diagnosed alcohol dependence, and expert identification of a need for extended post-release supervision and counselling.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 154A(1)(b), 154AA
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2); Pt 3 Division 3
- Sentencing Act 1989 (NSW), s 5(2)

Cases:
- R v Henry (1999) NSWCCA 111; (1999) 46 NSWLR 346
- R v Bo Too and Maiereniki (NSWCCA, 16 July 1992, unreported)
- R v Gallagher (1991) 23 NSWLR 220
- R v Jason Loughnan (CCA, 14 July 1992, unreported)
- Thornberry v The Queen (1995) 69 ALJR 771