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Court of Criminal Appeal 12 December 2003

REGINA v PILE [2003] NSWCCA 289 revised - 16

[2003] NSWCCA 289

Assault & violenceTheft & propertyPublic order & justice offences
NO QUESTION OF PRINCIPLE

Citation: REGINA v PILE [2003] NSWCCA 289 revised - 16/12/2003
Court: NSW Court of Criminal Appeal
Date: 12 December 2003
Judge(s): Beazley JA, Adams J, Miles AJ

Background

The applicant pleaded guilty in the Local Court to aggravated armed robbery under s 97(2) of the Crimes Act 1900, which carries a maximum term of 25 years' imprisonment. The offence involved a planned robbery of a post office in Kandos, NSW, in January 2002. The applicant drove a stolen vehicle to the scene while a co-offender entered the post office, brandished a pistol, and ordered twelve people to the floor before taking approximately $9,000 in cash. The pair subsequently destroyed the stolen vehicle by fire and were intercepted by police shortly afterwards.

The applicant made significant admissions to police after his arrest, acknowledging his own role and identifying his co-offender. At sentence, the District Court took into account three additional matters on a Form 1, relating to theft of the motor vehicle, unlicensed driving, and arson of the vehicle.

In the District Court, Bellear DCJ sentenced the applicant to six years' imprisonment commencing 16 August 2002, with a non-parole period of four years and six months. The applicant sought leave to appeal on the basis that the sentence was, in all the circumstances, excessive.

  • Whether the non-parole period of four years and six months was excessive having regard to the applicant's subjective circumstances, including his youth, drug dependency, early guilty plea, and rehabilitation prospects.
  • Whether the sentencing judge gave sufficient weight to the prospect of rehabilitation in fixing the non-parole period.
  • Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 that warranted a departure from the standard ratio between non-parole period and head sentence.

Decision

Adams J (with whom Beazley JA and Miles AJ agreed) applied the guideline judgment in R v Henry & Ors to assess the objective features of the offence. The robbery was planned, involved a firearm (even though unloaded), targeted vulnerable post office workers and customers, resulted in a significant cash loss, and caused substantial fear among the twelve people present. The applicant's role, while not the person who entered the post office, was central to the planning and execution.

On the subjective side, the Court gave considerable weight to the applicant's age (21 at the time), his serious drug dependency, and the significant admissions he made to police. Without those admissions, the sentencing judge had characterised the prosecution case as not particularly strong. The applicant was found to be entitled to a discount of around 25% for his early guilty plea, consistent with R v Thomson & Houlton, reflecting both the utilitarian value of the plea and an expression of remorse.

The Court found that the sentencing judge had not given appropriate significance to rehabilitation as a sentencing consideration. Evidence before the Court of Criminal Appeal showed the applicant had made sound progress in a structured drug and alcohol programme, with the responsible psychologist describing his motivation as genuinely intrinsic. Adams J concluded that the discretion in fixing the non-parole period had miscarried, enlivening the Court's jurisdiction to substitute a new sentence.

To facilitate a lengthy period of supervised parole, the Court reduced the non-parole period from four years and six months to three years, while retaining the six-year head sentence. This adjustment produced a significantly longer parole period, structured to support the applicant's continued rehabilitation in the community under supervision.

Orders Made

  • Leave to appeal granted.
  • Sentence imposed below quashed.
  • Substituted sentence of six years' imprisonment, commencing 16 August 2002 and expiring 15 August 2008.
  • Non-parole period of three years, commencing 16 August 2002 and expiring 15 August 2005.
  • The applicant to be released to parole at the expiration of the non-parole period under the supervision of the Probation and Parole Service.

Key Takeaways

  • The Court of Criminal Appeal confirmed that rehabilitation is an important sentencing consideration, and a failure to give it appropriate weight in fixing a non-parole period may constitute an error that enlivens appellate jurisdiction.
  • Under R v Thomson & Houlton, the discount for an early guilty plea of between 10% and 25% is expressly limited to the utilitarian value of the plea; where remorse or other factors are also relevant, they may be quantified separately or as a combined figure, with sentencing judges encouraged to quantify the effect explicitly.
  • A longer parole period, achieved by reducing the non-parole period while retaining the head sentence, can be structured specifically to provide extended community supervision where rehabilitation prospects are strong.
  • Applying the R v Henry & Ors guideline, the objective seriousness of an armed robbery is assessed by reference to factors including the degree of planning, the nature of the weapon used, the vulnerability of victims, and the amount stolen, even where actual physical violence is limited.
  • Evidence of participation in a structured rehabilitation programme, presented on affidavit in the appellate proceedings, was accepted by the Court as supporting a finding of genuine rehabilitative progress relevant to the construction of the sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 97(2) (aggravated armed robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 44 (special circumstances and non-parole periods)
- Criminal Appeal Act 1912 (NSW) s 6(3) (appeal ground: sentence excessive)

Cases
- R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346 (guideline judgment on armed robbery sentencing)
- R v Thomson & Houlton [2000] NSWCCA 183, 294; (2000) 49 NSWLR 383; 115 A Crim R 104 (guilty plea discount)
- R v Hearne [1999] NSWSC 605 (youthful offenders)
- Nguyen, unreported, NSWCCA, 14 April 1994 (diminishing significance of youth as offender approaches maturity)
- Tran, unreported, [1999] NSWCCA 109 (youth as a mitigating factor)