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JURISDICTIONAL LIMIT

VIEWS: 36 PAGES: 16

  • pg 1
									 Practical
 Cases for
Sentencing


        Debra Maher
  Research: Keisha Hopgood

       CLS Conference
        24 May 2008
      (Edited version – as at 25 July 2008)
INTRODUCTION (and disclaimer!)

This paper is not meant to be a study of important principles of sentencing – in fact, I
have deliberately left out any reference to, or discussion of, issues such as
objective/subjective matters, section 21A issues, totality, special circumstances etc.

I have aimed simply to provide a practical list of relevant cases in answer to the
questions I am often asked. For example, most of us know that background reports
shouldn’t contain details of uncharged allegations, or that fulltime rehab attracts
credit as custody time, but we can’t always come up with the case. What follows is a
list I hope with be helpful in a practical sense.



ASSISTANCE TO AUTHORITIES

In York v The Queen (2005) 79 ALJR 1919 Gleeson CJ at [3] observed:

―It is common sentencing practice to extend leniency, sometimes very substantial
leniency, to an offender who has assisted the authorities, and, in so doing, to take
account of any threat to the offender’s safety, the conditions under which the offender
will have to serve a sentence in order to reduce the risk of reprisals, and the steps
that will need to be taken to protect the offender when released. The relevant
principles are discussed, for example, in R v Cartwright (1989) 17 NSWLR 243;
R v Gallagher (1991) 23 NSWLR 220.‖

The current basis of a court’s power to discount any sentence for a State offence
where the offender has provided assistance to law enforcement authorities is found
in s 23(1) of the Crimes (Sentencing Procedure) Act 1999.



BACKDATING VERSUS DISCOUNTING

The desirability of backdating a sentence, rather than discounting the sentence by
reference to a period of pre-sentence custody, has repeatedly been stressed both at
common law and under s 47 the Act: R v Deeble (unrep, 19/9/91, NSWCCA);
R v Close (1992) 31 NSWLR 743; R v Schodde (2003) 142 A Crim R 307. For
example, Howie J in R v Newman & Simpson (2004) 145 A Crim R 361 at [32] said
(with the concurrence of other members of the court):

―I accept that the approach that was advocated in McHugh is a matter of practice and
that a sentencing judge has a discretion as to how to take into account pre-sentence
custody. See R v Nykolyn (2003) 39 MVR 385. But it should be emphasised once
again that backdating is the preferable course and it should be adopted unless it is
clearly inappropriate to do so.‖
In R v Newman & Simpson at [26]–[31], Howie J identified a number of reasons in
favour of backdating:

      It preserves the denunciatory and deterrent value of the sentence so that it is,
       and appears to be, adequate both to public perception and when it appears in
       statistical information.
      It makes it clear to the defendant and to the appeal court that the offender has
       received a reduction in sentence for pre-sentence custody.
      It avoids questions of disparity when comparing one sentence to another that
       has been markedly reduced by pre-sentence custody.
      It avoids skewing statistical information on that offence where there are very
       few comparable sentences for similar offences and avoids giving a false
       indication of the range of sentence that have been imposed for a similar
       offence or similar offender.
      It avoids lengthy sentences being imposed in years, months and days, which
       may suggest that sentencing is an exact science and that a sentence can be
       determined to a precise number of days.

This principle does not apply if parole has not been revoked by the Parole Authority.
In a case where an offender has committed a subsequent offence, the court should
not treat parole as having been notionally revoked: R v Skondin [2006] NSWCCA 59.

In R v Wood [2005] NSWCCA 159 at [5] the court held that, where an offender faces
multiple charges dealt with separately (that is, by separate judges), the second judge
cannot deny the offender the benefit of pre-sentence custody referable to the second
group of offences, simply because the first judge has backdated the first sentence so
that it coincides with the period the offender was in custody for the second group of
offences. The offender is entitled to have that period taken into account by the
second judge.

In R v Karageorge [1999] NSWCCA 213 it was held that the time spent in custody
was referable not only to the offence, which was subsequently successfully
appealed, but also to a different offence, for which the offender was sentenced. The
case emphasises the prudence for defence representatives of ensuring bail is
formally refused to enable the custody time to be ―referable‖ to that offence.


BACKGROUND REPORTS

The authorities in this area are on Pre-Sentence reports by Probation and Parole
officers, but the principles enunciated in these cases certainly extend to background
reports.

Uncharged or Unconvicted criminal conduct

A pre-sentence report must not contain inappropriate information. In R v Gilder Rose
[1978] QD R61 states that no reference should be made in a pre-sentence report, or


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in any associated medical or psychological report, to any alleged conduct of a
criminal nature attributed to the person, the subject of the report, unless he had been
convicted of an offence constituted by that conduct. It is improper to place before the
court in any report of this nature, material relating to allegations, investigations or
charges which did not result in a conviction and this should be made clear to those
responsible for the preparation of the reports.

The court continued that ―should any information of this nature be in a report, then
the defence should make an application to have that stricken from the report and
upon that application being successful the matter should commence de novo before
another judge.‖


Expressing a view on the nature of offence.

In R v Quinn NSW CCA 29 May 1996, the probation officer referred to an offence as
being ―a most dastardly act committed against an innocent victim in her own home.‖
That comment provoked the following comment from Levine J:

      ―I take this opportunity, speaking for myself, to indicate my view that I do not
      see it as part of a function of a probation officer to express his or her opinion
      about the nature of the offence. It is for the sentencing judge to make relevant
      findings of fact and to characterise those findings in a way as seen to be
      appropriate.‖

      ―In this case it is a coincidence that the words used by the probation officer
      appear to have accommodated His Honour’s opinion, unquestionably
      independently arrived at. Nonetheless, unless there is some specific
      requirement or request for the expression of such a view by a probation officer
      in a given case, (and I doubt whether that can legitimately arise in any order
      for or by a sentencing judge pre-sentence report). Such statement as was
      made here should be discouraged as it can form no useful part in the
      sentencing process.‖

This case is very clear authority for the proposition that the officer’s views with
regards to the offence should not form part of their report. This case is also authority
for the fact that emotive language should not be included in the report.



BAIL – ONEROUS CONDITIONS

Onerous bail conditions should be taken into account at sentence: R v Fowler (2003)
151 A Crim R 166.

 ―We accept that in an appropriate case the length and terms of an offender’s period
on bail awaiting trial or sentence is a matter relevant to the determination of the
proper sentence to be imposed. What weight is to be given to such a matter will vary
from case to case, depending upon what other factors need to be considered and



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what sentence is required in the particular case to address the purpose of
punishment.‖



DELAY BETWEEN ARREST AND CHARGING

Inexplicable delay between the arrest and charging of an offender entitles him or her
to a significant added element of leniency: R v Blanco (1999) 106 A Crim R 303
at [11] (applying R v Todd [1982] 2 NSWLR 517 at 519; and Mill v The Queen (1988)
166 CLR 59 at 64–66).

As explained in Blanco at [16], such delay should be taken into account when
sentencing an offender because:

      of the uncertain suspense in which a person may be left;
      of any demonstrated progress toward rehabilitation during the intervening
       period; and
      a sentence for a stale crime calls for a measure of understanding and flexibility
       of approach.

Note: In addition to Todd and Mill, see R v Harrison (1990) 48 A Crim R 197 at 198–
199 and R v King (1997-1998) 99 A Crim R 288.

It is highly desirable that the prosecuting authorities act promptly where there is
evidence of serious criminality. It is in the public interest that those who are
suspected of serious crime be brought to justice quickly — particularly where there is
a strong case against them. A failure by the authorities to do so will mitigate an
otherwise appropriate sentence: Blanco at [17].



―ELLIS DISCOUNT‖ - VOLUNTARY DISCLOSURE OF GUILT

R v Ellis (1986) 6 NSWLR603
Defendant committed 7 armed robberies, confessed involvement to a minister of
religion and then to police in circumstances where police had no suspicion of his
involvement. Per Street CJ:

―Where it was unlikely that guilt would be discovered and established were it not for
the disclosure by the person coming forward for sentence, then a considerable
element of leniency should properly be extended by the Sentencing Judge. .... (The
degree of leniency offered) will vary according to the degree of likelihood of that guilt
being established against the person concerned.‖

Ryan v R [2001] HCA 21 – (paraphrasing Ellis)
Thus, according to Ellis, the degree of leniency to be shown for the disclosure of
unknown offences will vary according to



                                                                                       5
  1)   the likelihood that the offences would have been discovered by the authorities;
       and
  2)   the likelihood that the offences could have been proven beyond reasonable
       doubt in a court without the disclosure.

Lewins v R [2007] NSWCCA 189
Although the leniency referred to (in Ellis) ―extends to those cases where the offender
volunteers additional criminality otherwise unknown to the police, the extent of
leniency will obviously not be of the same significance as in those cases where the
police are unaware of any criminal offences committed by the offender. It is a matter
of degree. In some cases the known criminality might be so great that little leniency
can be shown for further offences revealed by the offender.‖

DBW v R [2007] NSWCCA 236
Voluntary disclosure of guilt in circumstances where it is unlikely guilt would have
been discovered ―is a factor entitled to significant weight in the sentencing exercise.
It is a matter to be taken into account over and above the consideration to be given to
a plea of guilty. … His contrition was plainly of the highest order and his prospects of
rehabilitation were clearly very good… Nevertheless his confessions were
accordingly more than simply corroboration of these matters.‖

Even though there was a real probability of a course of investigation that would
reveal some offending behaviour… ―This does not, however, detract from the
entitlement of the applicant to a significant amelioration of his sentence for his prompt
and full confession, and for the high level of contrition which was manifest by his
conduct in this respect.‖



ENTRAPMENT

It is legitimate to discount a sentence by reason of the circumstances in which the
offender was led to commit the offence, including dealings with an undercover police
officer acting as agent provocateur. This may be a ground for mitigation, but each
case must be judged on its own facts: R v Scott (unrep, 30/6/83, NSWCCA) per
Lee J; R v Rahme (1991) 53 A Crim R 8 at 13; R v Reppucci (1994) 74 A Crim R
353.

It is permissible for a sentencing judge to regard, as a mitigating factor, the fact that
an offender engaged in criminal acts to a greater extent than would have happened if
no assistance was provided by the authorities. This principle applies to a case where
it is likely that, without assistance, the offender would have made little progress in
carrying out the enterprise: R v Thomson [2000] NSWCCA 294 per James J at [80].




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EXTRA-CURIAL PUNISHMENT

The sentencing court is entitled to take into account punishment meted out by others,
such as abuse, harassment and threats of injury to person and property. Thus in
R v Allpass (1993) 72 A Crim R 561 the court observed that, quite apart from the
sentence, ―the respondent and his wife have paid a high price for his wrongdoing‖
and, hence, this was a matter that could be taken into account.

A court may, and should, take into account the fact that the offender has already
suffered some serious loss or detriment as a result of having committed the offence.
This includes extra-curial punishment by private persons extracting retribution or
revenge for the commission of an offence: R v Daetz (2003) 139 A Crim R 398. The
weight to be given to any extra-curial punishment will depend on all the
circumstances of the case and in some cases extra-judicial punishment attracts little
or no weight.



GOOD CHARACTER

Veen v The Queen [No 2] [1988] HCA 14
In a sentencing context, being of ―otherwise good character‖ may in some
circumstances suggest that the prisoner’s actions in committing the offence for which
he or she is being sentenced were ―out of character‖ and that he or she is unlikely to
re-offend. For that purpose, the absence of previous convictions is usually regarded
as evidence of good character. On the other hand, many previous convictions
suggest that the offence for which sentence is being passed was not an
―uncharacteristic aberration‖.



GUIDELINE JUDGMENTS AND CHILDREN

In R v SDM (2001) 51 NSWLR 530 Wood CJ at CL at [19] rejected the proposition
that the guideline judgment in R v Henry (1999) 46 NSWLR 346 could not apply
otherwise than to adult offenders. The considerations in the principles of s 6 of the
Children (Criminal Proceedings) Act 1987:

―can equally well be allowed for, along with all the other aspects of sentencing policy
and principle relevant to young offenders, particularly those who were children at the
time of offending, within the ambit of a guideline judgment‖ at [20].



GUILTY PLEA TO ELEMENTS OF THE OFFENCE ONLY

A plea of guilty admits those matters which are the essence of the charge. It does not
admit the non essential ingredients an offence: R v O’Neill (1979) 2 NSWLR 582 at



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588. In GAS v The Queen (2004) 217 CLR 198 at [30] five members of the High
Court said of fact finding following a plea of guilty:

―In the case of a plea of guilty, any facts beyond what is necessarily involved as an
element of the offence must be proved by evidence, or admitted formally (as in an
agreed statement of facts), or informally (as occurred in the present case by a
statement of facts from the bar table which was not contradicted). There may be
significant limitations as to a judge’s capacity to find potentially relevant facts in a
given case.‖



JIRS SENTENCING STATISTICS

R v Bloomfield (1998) 44 NSWLR 734
―…bald statistics are of limited use, however they may provide indications of general
sentencing trends and standards, assist in assuring consistency and be useful in
determining whether a sentence is manifestly excessive or manifestly inadequate.‖

R v Ryan (2003) NSW 202
Cites Bloomfield with approval, and add that ―paucity of number makes them of little
utility‖ (where only 7 cases were represented in the statistics tendered in that matter).

Heine v R (2008) NSWCCA 61
In noting Bloomfield, added;
―the statistic may provide a guide to the pattern of sentencing for an offence. The
larger the sample the more likely that they will be a useful guide.‖



JURISDICTIONAL LIMIT & POSSIBILITY OF SUMMARY DISPOSAL

Jurisdictional limit

The statutory provision of a maximum available penalty (say 2 years) does not have
the effect of making a higher prescribed statutory maximum for a particular offence
irrelevant to a sentence determination by a magistrate exercising the jurisdiction of
the lower court.

R v Doan (2000) NSWCCA 317
―The result of true construction of the statutory provisions in New South Wales is that,
what has been prescribed is a jurisdictional maximum and not a maximum penalty for
any offence triable within that jurisdiction. …. the implication of the argument of the
appellant that, in lieu of prescribed maximum penalties exceeding two years
imprisonment, a maximum of two years imprisonment for all offences triable
summarily in the Local Court has been substituted, must be rejected. As must also
be rejected, the corollary that a sentence of two years imprisonment should be
reserved for a worst case.‖




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Summary Disposal possibility

A higher court should take into account that the matter could have been dealt with in
a lower court – in some circumstances more than others. Where a more serious
matter was committed and then withdrawn (leaving matters in the higher court which
could have been dealt with summarily) then more weight should be given than where
prosecution have elected.

R v Doan (2000) NSWCCA 317
―The omission to consider whether the loss of the chance that the matters might have
been dealt with in the jurisdictionally limited Local Court…‖ (is a ground for appeal on
sentence).

R v Crombie (1999) NSWCCA 297
The sentencing judge (in the higher court) is not required to proceed on the basis that
the maximum available sentence is that which could have been imposed in the Local
Court. ―At most they establish that the circumstance identified is to be taken into
account.‖

In R v Palmer [2005] NSWCCA 349, Hall J, Grove J and Smart J agreeing, in
responding to a submission that the sentencing judge erred in failing to take into
account the fact that all the offences were capable of summary disposal, set out the
following principles at [15]:

―(a) The first is that a judge in the District Court is not bound by the jurisdictional limit
      imposed on the Local Court when dealing with an offence on indictment which
      was capable of summary disposal, but may have regard to that limit when the
      case is one which could appropriately have been disposed of in the Local
      Court: R v Crombie [1999] NSWCCA 297 at [16]; R v LPY (2002) 136 A Crim R
      237 at 240 and R v El Masri [2005] NSWCCA 167 at [30].

(b)   Secondly, the fact that a matter could have been dealt with in the Local Court,
      had the prosecuting authority not elected otherwise, remains a relevant
      consideration in the exercise of the discretion reserved to the sentencing judge:
      Crombie (supra) at [15].

(c)   Thirdly, however, the relevant decisions that establish that principle do not go
      so far as to require the sentencing judge to proceed upon the basis that the
      maximum available sentence is that which could have been imposed in the
      Local Court. At most they establish that the circumstance identified is to be
      taken into account. Depending upon the objective and the subjective criminality
      of the offender, it may properly be regarded as calling for some mitigation of the
      sentence that would otherwise be imposed in the District Court for an offence
      prosecuted upon indictment. Where it appears that that circumstance has been
      entirely overlooked by the sentencing judge, it may properly justify the granting
      of leave to appeal: Crombie … at [16].

(d)   Fourthly, the significance of the loss of the chance of the matter being dealt
      with in the Local Court varies from case to case. In some cases it would


                                                                                           9
      contribute to mitigation of sentence. It is a matter to be taken into account, but
      is not a universal factor for the reduction of sentence: R v Doan (2000) 50
      NSWLR 115.

(e)   Fifthly, the failure by a sentencing judge to mention the matter in his or her
      remarks on sentence and the length of the sentence does not necessarily
      establish that the sentencing judge failed to have regard to the matter. In some
      circumstances the length of the sentence may not suggest that the matter was
      overlooked: R v Depoma [2003] NSWCCA 382 at [17].

(f)   Finally, in circumstances where a sentencing judge has made no reference to
      the summary disposal argument in his or her remarks on sentence, it is
      necessary to consider whether that omission is indicative of error. One way of
      testing that proposition is to consider whether the sentence itself appears
      manifestly excessive in all the circumstances of the case — if the factor had
      been taken into account and given appropriate weight, a substantially lesser
      sentence was appropriate in the case: El Masri … at [45] per Johnson, J (with
      whom Hunt, AJA and Hulme, J agreed).‖



MENTAL ILLNESS

In R v Hemsley [2004] NSWCCA 228 at [33]–[36] Sperling J set out the following
principles:

―Mental illness may be relevant … in three ways.

First, where mental illness contributes to the commission of the offence in a material
way, the offender’s moral culpability may be reduced; there may not then be the
same call for denunciation and the punishment warranted may accordingly be
reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398
at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23];
Pearson [2004] NSWCCA 129 at [43].

Secondly, mental illness may render the offender an inappropriate vehicle for general
deterrence and moderate that consideration: Pearce (NSWCCA, 1 November 1996,
unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSWCCA,
18 March 1992, unreported); Israil at [22]; Pearson at [42].

Thirdly, a custodial sentence may weigh more heavily on a mentally ill person:
Tsiaras at 400; Jiminez at [25]; Israil at [26].

A fourth, and countervailing, consideration may arise, namely, the level of danger
which the offender presents to the community. That may sound in special deterrence;
Israil at [24].‖ (emphasis added)




                                                                                     10
OFFENCE WHILE ON CONDITIONAL RELEASE

R v Wallace (2007) NSW CCA
―There are numerous, and long-standing, decisions of this Court holding in the
clearest terms that the commission of an offence while the offender is on any form of
conditional liberty is an aggravating feature of that offence.‖ (even if the new offence
is a very different kind of offence then the offence for which the offender is on
conditional liberty)

Chaplin v R (2006) 160 A Crim R 85 at para 27
Such aggravation ―will be more severe in circumstances where a similar offence is
committed while a person is on conditional liberty.‖



OPPORTUNITY OF ADDRESSING

Generally speaking, judges should afford both parties the opportunity of addressing
and placing arguments before the court in proceedings for offences dealt with on
indictment. This includes an opportunity to address the magistrate or judge on
penalty: R v Tocknell (unrep, 28/5/98, NSWCCA) citing R v Tait & Bartley (1979) 24
ALR 473 at 476–477. Hulme J said in Tocknell:

―To deny a party that opportunity is also a fundamental breach of the requirements of
procedural fairness. Of course, some latitude exists in the application of the principle
… Sometimes a judge, conscious that he is about to make a decision in accordance
with that sought by a party will, particularly in a busy list, not invite address by that
party. Not infrequently a party which has received an indication from a tribunal of an
intention to make a decision in that party’s favour will see no need to address. For
many years it was almost an invariable practice for the Crown not to address on
penalty and, in those days, a judge could be pardoned for relying on any prosecutor
who wished to depart from this practice to so indicate. However, for some years now
it has been common for persons appearing for the Crown in the District and Supreme
Court to address on penalty and, indeed, it has been made clear that there is an
obligation on the Crown to assist the judge in the sentencing exercise — Tait v
Bartley 24 ALR 473 at 476–7. If there is the remotest possibility that a decision will be
adverse to a party’s interest, a judge must allow, and in my view should invite, that
party or its legal representative to address the court.‖



PAROLE REVOCATION

Callaghan v R 2006 NSWCCA 58
Discretion whether to make the sentence for fresh offence (committed while on
parole) consecutive on the end of the (revoked) parole period, or cumulative. The
Judge may backdate on sentence where parole has been revoked.




                                                                                      11
―a discretion exists. There is no clear rule which governs all cases …. It would in
some cases be unfair not to backdate to some point (not necessarily the date of
revocation of parole) before the expiration of the earlier parole period ….. To date the
fresh offences on the date of expiration (of parole) is to assume that the offender
would not have been granted a second chance at parole.‖



PHYSICAL DISABILITY AND CHRONIC ILLNESS

Physical disability can have a dual role in the sentencing process. First it may be
used to explain the involvement and vulnerability of the accused. Second, it may, if
the offender is a person with a severe disability, mean that time in gaol may be more
onerous: R v Oveido-Portela (unrep, 17/12/93, NSWCCA) per Finlay J at 25.

Serious physical disabilities or poor health rendering imprisonment more
burdensome to the offender than for the average prisoner has been held to establish
special circumstances warranting a longer period on parole: R v Sellen (1991) 57 A
Crim R 313.



PLEA AGREEMENTS

Often, where an offender pleads guilty, sentencing procedures are marked by a
degree of informality. Usually, an agreed statement of facts, sometimes negotiated
between the accused and the prosecution, will be placed before the sentencing
judge: The Queen v Olbrich (1999) 199 CLR 270 at [52] per Kirby J. In GAS v The
Queen (2004) 217 CLR 198 at [27]–[32], the High Court said that plea agreements
are affected by five fundamental principles:

      Firstly, it is the prosecutor, alone, who has the responsibility of deciding the
       charges to be preferred against an accused person.
      Secondly, it is the accused person, alone, who must decide whether to plead
       guilty to the charge preferred.
      Thirdly, it is for the sentencing judge, alone, to decide the sentence to be
       imposed.
      Fourthly, there may be an understanding, between the prosecution and the
       defence, as to evidence that will be led, or admissions that will be made, but
       that does not bind the judge, except in the practical sense that the judge’s
       capacity to find facts will be affected by the evidence and the admissions. In
       deciding the sentence, the judge must apply to the facts as found, the relevant
       law and sentencing principles.
      Fifthly, an erroneous submission of law may lead a judge into error and, if that
       occurs, the usual means of correcting the error is through the appeal process.
       It is the responsibility of the appeal court to apply the law.




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The wisdom of tendering the entire Crown brief in addition to the agreed statement of
facts where a charge bargain has occurred has been doubted by the court in R v H
[2005] NSWCCA 282 at [58] and R v Bakewell (unrep, 27/6/96, NSWCCA). This is
because it runs a risk that the sentencer will take into account facts that will
aggravate the offence contrary to the De Simoni principle. There is also a danger that
the judge will breach the De Simoni principle where the parties choose to supplement
an agreed statement of facts with additional material: R v FV [2006] NSWCCA 237 at
[41]. In FV the complainant’s statement was used as an elaboration of the agreed
statement of facts. The court held it provided an insight into her ordeal and
supplemented, rather than contradicted, the agreed statement.

Section 191 of the Evidence Act 1995 deals with agreements as to facts. The section
provides that, where ―formalities are met‖, no evidence can be adduced to contradict
or qualify an agreed fact unless the court gives leave under s 191(2)(b). Formalities
in the context of sentencing will include that the parties have signed the agreed
statement of facts as encouraged in GAS v The Queen (2004) 217 CLR 198. The
section was discussed in R v FV [2006] NSWCCA 237 at [35], [39], [44].



REHABILITATION PROGRAM – CREDIT AS CUSTODY

R v Eastway [1992] (Gleeson/Hunt/Matthews)
Crown inadequacy appeal, where sentencing judge gave credit of 14 months in
custody for a period of 2 years and 3 months spent at Odyssey House. (done as an
in-custody backdate).

―In the present case, the Judge has allowed approximately a 50% reduction,
recognising that the respondent spent some time at large toward the end of the
program. In my opinion, that was a very fact assessment in the circumstances of this
case, and I see no error demonstrated in relation to that deduction.‖

―A long sentence of imprisonment, at this important stage of the respondent’s
spectacular rehabilitation, would in my respectful view have been not only destructive
of that rehabilitation, but inhumane. I recognise the need for public deterrence, but
rehabilitation of this quality in a drug addict is such as to require the application of
mercy, not a blind adherence to inflexible standards of punishment.‖

R v Osenkowski (quoted in Eastway)
―It is important that prosecution appeals should not be allowed to circumscribe unduly
the sentencing discretion of judges.

There must always be a place for the exercise of mercy where a judge’s sympathies
are reasonably excited by the circumstances of the case. There must always be a
place for the leniency which has traditionally been extended even to offenders with
bad records when the judge forms the view, almost intuitively in the case of
experienced judges, that leniency at the particular stage of the offender’s life might
lead to reform.‖




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Brown v R; Reid v R [2006] NSWCCA 114
Submitted that M.E.R.I.T. is a kind of quasi-custody, but held that ―a MERIT program
falls far short of being a full-time residential program in a drug rehabilitation centre. If
any allowance was to be made for this factor, it would, in my opinion, only be a very
small allowance.‖


Reed v R [2007] NSW CCA 4
Accepts that 91 days pre-sentence custody and six months in residential
rehabilitation at Guthrie House were equivalent to six months full-time custody.




ROBBERY OFFENCES and DE SIMONI PRINCIPLES

In R v Grainger (unrep, 3/8/94, NSWCCA) the offender was originally charged with
armed robbery under s 97(1) of the Crimes Act 1900, however, the Crown accepted
a plea to the lesser offence of robbery under s 94 of the Crimes Act 1900. The
sentencing judge breached the De Simoni principle by taking into account the
circumstance that the offender carried a knife at the time of the offence, as that
rendered the offender liable for a more serious penalty under s 97(1) of the Crimes
Act 1900.

Similarly, in R v Rend [2006] NSWCCA 41 James J held at [103] that:

―The sentencing judge was not entitled to take into account as an aggravating factor
that the offence had been committed in company. The appellant had been convicted
of an offence under s 94 of the Crimes Act of robbery simpliciter and had not been
convicted of the aggravated offence of robbery in company under s 97 of the Crimes
Act, which carries a higher maximum penalty. To take into account as an aggravating
factor that the offence had been committed in company involved a clear breach of
R v De Simoni (1981) 147 CLR 383 and also of s 21A(4) of the Crimes (Sentencing
Procedure) Act.‖



ROBBERY OFFENCES OTHER THAN ARMED ROBBERY

Subsequent decisions of the NSW Court of Criminal Appeal have held that the Henry
guideline is not restricted to armed robbery offences under s 97 of the Crimes Act
1900 (NSW). It is also applicable at sentencing in cases such as:

1.     Robbery in company: R v Murchie (1999) 108 A Crim R 482 per Simpson J
       at [20] said the guideline was ―equally applicable‖. In R v Poihipi [2001]
       NSWCCA 306 per Mason P at [31] referred to Murchie and used the guideline
       judgment to indicate ―compelling reasons‖ why the sentence was too low. See
       also R v Lesi [2005] NSWCCA 63.



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2.       Assault with intent to rob: R v Stanley [2003] NSWCCA 233 per Sully J at
         [13]–[14]. His Honour said there was no reason that the guideline should not
         be applied ―mutatis mutandis‖. Stanley was applied in R v Lesi [2005]
         NSWCCA 63 per Grove J at [29].

3.       Aiders and abetters: R v Goundar (2001) 127 A Crim R 331 per Wood CJ at
         CL at [37]–[38].

4.       As a starting point for sentences under s 98: R v Campbell [2000]
         NSWCCA 157: R v Hooper [2004] NSWCCA 10 per James J at [34]–[37].

5.       Other than a principal offender — joint criminal enterprise — common
         purpose: R v Donovan [2003] NSWCCA 324 per Hidden and Greg James JJ
         at [26].

Since Henry it has been held that, in an exceptional case, the requirements of justice
may justify a sentence which is not one of full-time imprisonment: R v Govinden
(1999) 106 A Crim R 314; R v Metcalf [2000] NSWCCA 277; R v Blackman [2001]
NSWCCA 121; R v Parsons [2002] NSWCCA 296; R v Nair [2003] NSWCCA 368;
R v DT [2004] NSWCCA 349.




CROWN APPEALS AGAINST THE NON-IMPOSITION OF FULL-TIME
CUSTODIAL SENTENCES FOR ROBBERY 1999–2005 WHERE THE ORIGINAL
PENALTY WAS CONFIRMED AS ADEQUATE ON APPEAL

Matter          NSWCCA Section       Penalty        Age   Was    error Appeal     Most     exceptional
                                                          disclosed?   result     circumstances

1999

R v Govinden    118      97(1)/346   s 558 Recog. 18      No          Dismissed   Most     exceptional
                                     2 yrs.                                       circumstances.

2000

R v Metcalf     277      97(1) (x2) PD         fixed 19   No          Dismissed   Most     exceptional
                                    3 yrs.                                        circumstances.

R v Griggs      33       97(1)       s 558 Recog. 19      Yes         Allowed     > PD fixed 18 mths.
                                     2 yrs.                                       Not discussed.

2001

R v Blackman & 121       97(2)       s 12 susp. W 17      No          Dismissed   Most     exceptional
Walters                              super.     —                                 circumstances.
                                     2 yrs.

R v Blackman & 121       97(2)       s 12 susp. W 20      No          Dismissed   Most     exceptional
Walters                              super.     —                                 circumstances.
                                     2 yrs.




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Matter          NSWCCA Section   Penalty        Age   Was    error Appeal     Most     exceptional
                                                      disclosed?   result     circumstances

2002

R v Israil      255     97(1)    s 12 susp. W 26      No          Dismissed   Not discussed. Mental
                                 super.     —                                 illness & rehabilitation
                                 2 yrs.                                       the issues.

R v Parsons   & 296     97(2)    PD        fixed 20   No          Dismissed   Most     exceptional
Poore                            2 yrs.                                       circumstances.

R v Parsons   & 296     97(2)    PD        fixed 19   No          Dismissed   Most     exceptional
Poore                            2 yrs.                                       circumstances.

2003

R v Nair        368     97(1)    s 12 susp. W 22      No          Dismissed   Most     exceptional
                                 super.     —                                 circumstances.
                                 12 mths.

2004

DT              349     97(1)    s 12 susp. W 17      No          Dismissed   Exceptional case.
                                 super.     —
                                 18 mths.

2005

R v Gadsden     453     97(1)    CSO 200 hrs    18    No          Dismissed   Most     exceptional
                                                                              circumstances.




UNTESTED SELF SERVING STATEMENTS

The fact that the rules of evidence are rarely invoked for sentence proceedings and
that hearsay evidence is routinely admitted does not mean that the court is not
required to critically assess the weight of the evidence before it. The Court of
Criminal Appeal has said repeatedly that while hearsay evidence of statements made
by prisoners to doctors, psychologists, psychiatrists and parole officers in reports is
admissible on sentence, very considerable caution should be exercised in relying on
such statements when the prisoner does not give any evidence and the matters are
in dispute: R v Hooper [2004] NSWCCA 10 at [49]; Munro v R [2006] NSWCCA 350
at [17]–[19]. The Court of Criminal Appeal has criticised the practice of placing
material of this kind before sentencing judges in an attempt to minimise the objective
seriousness of a crime otherwise apparent on the face of a record: R v Qutami
(2001) 127 A Crim R 369, at [58]–[59] per Smart AJ, and Spigelman CJ at [79].

The practice of tendering a note or unsworn statement or letter from an offender in
sentencing proceedings has been severely criticised: R v Elfar [2003] NSWCCA 358
at [25]. Exculpatory material which is disputed and admitted in this form should be
treated with caution because it is untested: Elfar at [25].




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