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Court of Criminal Appeal 8 March 2002

Regina v Russell Geoffrey Francis [2002] NSWCCA 51 revised - 12

[2002] NSWCCA 51

Assault & violencePublic order & justice offences
CRIMINAL LAW SENTENCING CRIMES ACT 1900, S 90A SENTENCE MANIFESTLY INADEQUATE DISCRETION TO RE SENTENCE

Citation: Regina v Russell Geoffrey Francis [2002] NSWCCA 51
Court: NSW Court of Criminal Appeal
Date: 8 March 2002
Judge(s): Stein JA, O'Keefe J, Buddin J

Background

The respondent pleaded guilty on the morning of his trial to two counts of detaining for advantage and causing injury, contrary to s 90A of the Crimes Act 1900 (NSW). The offences arose from events over the night and morning of 31 August and 1 September 2000, during which two victims were held captive, interrogated, and subjected to prolonged and serious physical violence over many hours. Two co-offenders were also involved.

The sentencing judge found that the respondent had willingly participated in what he described as a "reign of terror," actively assaulting the victims with his fists, elbows, and a baseball bat, threatening to kill them, and taking them to locations where those threats could be carried out. The victims suffered significant physical injuries and lasting psychological fear.

At first instance, Coolahan DCJ sentenced the respondent to concurrent terms of three years' imprisonment, with a non-parole period of only 12 months. The Crown appealed, contending the sentences were manifestly inadequate.

  • Whether the sentences imposed, including the non-parole period, were manifestly inadequate given the objective gravity of the offences
  • Whether the sentencing judge improperly treated the late guilty pleas as "timely" by reference to irrelevant factors, namely threats from a co-offender and the respondent's drug dependence
  • Whether the Court of Criminal Appeal should exercise its discretion to intervene and re-sentence, having regard to time already served, rehabilitation progress, the respondent's youth, and the prosecution's 10-week delay in filing the appeal

Decision

Stein JA (with whom O'Keefe J and Buddin J agreed) held that the sentences were manifestly inadequate. Given the sentencing judge's own findings about the extreme severity of the offending, the objective gravity of the respondent's criminality was very high. The original sentences, and the non-parole period in particular, plainly failed to reflect that gravity.

Because manifest inadequacy was established, the Court did not need to resolve the separate question of whether the late guilty pleas had been given excessive discount weight. The non-parole period of 12 months was singled out as especially inadequate, consistent with the principle in R v Simpson [2001] NSWCCA 534 that a non-parole period must itself appropriately reflect the seriousness of the offence, even where special circumstances exist.

On the question of discretion, the respondent's counsel argued against intervention, pointing to rehabilitation progress, drug and alcohol history, youth, and the fact that more than half the non-parole period had already been served. The Court also noted that the prosecution had delayed 10 weeks in filing the appeal notice, waiting unnecessarily for the transcript of the sentencing remarks. That delay was described as unsatisfactory and counted as a further discretionary factor in the respondent's favour.

Despite those mitigating considerations, the Court concluded that the extreme seriousness of the offences warranted intervention. In re-sentencing, the Court took into account the respondent's subjective circumstances, the element of double jeopardy, and the finding of special circumstances made by the sentencing judge.

Orders Made

  • Appeal allowed; original sentences quashed
  • Respondent sentenced to four years' imprisonment on each count, to be served concurrently, commencing 24 August 2001 and expiring 23 August 2005
  • Non-parole period fixed at two years, expiring 23 August 2003

Key Takeaways

  • A non-parole period must itself reflect the objective seriousness of the offence; finding special circumstances does not permit a non-parole period that is disproportionately short relative to the gravity of the conduct.
  • Manifest inadequacy of a sentence can be established even where the sentencing judge correctly identified the gravity of the offending, if that identification did not translate into an appropriately serious sentencing outcome.
  • Where a Crown appeal involves manifest inadequacy, there is no need to wait for the transcript of sentencing remarks before filing; the Court of Criminal Appeal treated the prosecution's 10-week delay in filing as an unsatisfactory discretionary factor operating against intervention.
  • Rehabilitation progress, youth, and time already served on the non-parole period are relevant discretionary factors on a Crown appeal, but they do not automatically preclude the Court from re-sentencing when the original sentences are plainly inadequate.
  • Double jeopardy remains a relevant consideration on re-sentencing following a successful Crown appeal, and the Court took it into account alongside the respondent's subjective circumstances when fixing the new sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 90A (detaining for advantage and causing injury)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (suspended sentences)
- Criminal Appeal Act 1912 (NSW), s 5D (Crown appeals against sentence)

Cases
- Power v The Queen (1973) 131 CLR 623
- R v Simpson [2001] NSWCCA 534