Citation: Regina v Jarman [2001] NSWCCA 178 revised – 22/05/2001
Court: New South Wales Court of Criminal Appeal
Date: 11 May 2001
Judge(s): Carruthers AJ; Badgery-Parker AJ
Background
The applicant pleaded guilty to robbery and admitted a related offence of break, enter and steal. The robbery involved entering a bank, joining the queue, and demanding $1,670 from a teller by claiming to have a gun. He cooperated fully with police, admitted the offence when shown security footage, and entered an early guilty plea.
The applicant had an extensive criminal record stretching back to his early teens, including multiple serious property offences and prior convictions for robbery and bank robbery. Critically, he was on parole at the time of both offences and was also on bail when the robbery was committed.
In the District Court, Judge Job sentenced him to six years imprisonment with a minimum term of three and a half years. The applicant sought leave to appeal against the severity of that sentence. Fresh psychiatric evidence, not available at the original sentencing, was placed before the Court of Criminal Appeal.
Legal Issues
- Whether the six-year sentence was manifestly excessive, having regard to the guideline judgment in R v Henry (1999) 46 NSWLR 346
- Whether Judicial Commission sentencing statistics demonstrated the sentence fell outside the appropriate range
- Whether the sentencing judge misdirected himself by treating the length of a prior Court of Criminal Appeal sentence as a floor he could not go below
- Whether fresh psychiatric evidence warranted intervention to alter the apportionment between the non-parole period and the additional term
Decision
The Court found no error on the part of Judge Job in the original sentencing. The remark about not going below the term previously fixed by the Court of Criminal Appeal was read as a value judgment about appropriate sentence length in context, not a misdirection as to the available range.
On the Henry guideline, the Court held that the guideline (directing a four-to-five year full term for a young offender with little or no criminal record using a weapon) offered little assistance in this case. The applicant was not a young offender in the relevant sense, carried a very significant criminal record, and was being sentenced for two offences simultaneously. The Court cautioned against straining the guideline to cover factually distinct categories of case.
The Judicial Commission statistics presented a more arguable basis for challenge, but the Court observed that the statistics appeared not to account for cases where a sentencing judge was also taking into account a separately admitted offence. The Court therefore could not conclude from the statistics alone that the sentence fell outside the acceptable range.
Despite finding no error below, the Court allowed the appeal on the basis of fresh psychiatric evidence. That evidence, unavailable to Judge Job, established that the applicant suffered from a psychiatric illness, and that continued drug use would directly affect his ability to manage that illness. Combined with evidence that his prison placement on strict protection would make his custody more onerous, the Court found special circumstances warranting a reduction in the non-parole period and a corresponding extension of parole supervision. The total sentence of six years was maintained.
Orders Made
- Leave to appeal granted
- Appeal against sentence allowed; District Court sentence quashed
- In lieu thereof: imprisonment for six years commencing 7 July 1999 and expiring 6 July 2005, with a non-parole period of two years and nine months, expiring 6 April 2002 (the earliest eligible release date)
Key Takeaways
- The Court of Criminal Appeal confirmed that an appellate court may intervene in sentencing not because of any error by the sentencing judge, but where fresh evidence of significance was not before that judge at the time of sentencing.
- The Henry guideline for armed robbery is not a universal starting point. Where an offender does not fit the profile the guideline was designed to address (a young offender with minimal criminal history), a sentencing court may derive little assistance from it.
- A sentencing judge's remark that they "cannot go below" a prior appellate sentence will not necessarily constitute misdirection; it may be read as a conclusion about appropriate sentence length rather than an error about available range.
- Fresh psychiatric evidence establishing both a mental illness and the relationship between drug use and management of that illness can constitute special circumstances justifying a longer additional term, even where the total head sentence is maintained.
- Judicial Commission statistics, while relevant to assessing whether a sentence is within range, must be read with care when the sentencing circumstances (such as a judge taking into account a separately admitted offence) are not reflected in the statistical cohort.
Legislation and Cases Referenced
Legislation:
- Mental Health Act 1990 (NSW)
Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on armed robbery sentencing)
- R v Engert (1995) 84 A Crim R 67
- R v Letteri (NSWCCA, Unreported, 18 March 1992)
- R v Tsiaras (1996) VR 398