R v Bell [2011] NSWCCA 14

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Bell [2011] NSWCCA 14 Hearing dates: 3 February 2011 Decision date: 03 February 2011 Before: McClellan at [1] Adams J at [12] Buddin J at [13] Decision: Appeal dismissed Catchwords: CRIMINAL LAW - Crown appeal against sentence - whether extent of accumulation was manifestly inadequate - offences were associated with two separate robberies on same day - accumulation is an exercise of discretion - failure to provide greater accumulation did not lead to error - Crown appeal dismissed Cases Cited: R v Cahyadi (2007) NSWCCA 1 Hammoud (2000) 118 A Crim R 66 R v Henry & ors (1999) 46 NSWLR 346 Category: Principal judgment Parties: The Crown (applicant) Kaine John Alexander Bell (respondent) Representation: Counsel: P A Leask (Crown) B Rigg (respondent) Solicitors: Director for Public Prosecutions (Crown) Aboriginal Legal Service (respondent) File Number(s): 2010/1013 Decision under appeal Date of Decision: 2010-10-29 00:00:00 Before: Toner DCJ File Number(s): 2010/1013

Judgment 1McCLELLAN CJ at CL: This matter was heard on 3 February 2011 when the court determined that the appeal should be dismissed and made that order. These are my reasons for joining in that decision. 2The Crown has appealed the sentences imposed on the respondent for three offences. The first offence was of robbery armed with a dangerous weapon which occurred on 31 December 2009. The second offence occurred on the same day and at the same premises as the first offence. The third offence occurred on the same day but at different premises. Each offence carried a maximum sentence of 25 years imprisonment. 3Although the Crown originally pleaded a ground of appeal in which it submitted that the individual sentences were inadequate counsel conceded during the hearing that there had been a misapprehension as to the relevant starting point. It was accepted that when the correct starting point was identified the individual sentences were appropriate having regard to the approach of this Court to this offence in the guideline judgment of R v Henry & Ors (1999) 46 NSWLR 346. 4In respect of each offence the sentencing judge imposed a sentence of 5 years imprisonment with a non-parole period of 2 years. In respect of the offences which took place at the same premises his Honour made the sentences wholly concurrent. He provided an accumulation of only 3 months in relation to the sentence for the third offence making the overall sentence 5 years and 3 months with a non-parole period of 2 years and 3 months. 5Each of the offences concerned the robbery of a bottle shop when the respondent was carrying a firearm. As it happened the firearm was inoperative but this of course was unknown to the persons who were present in the bottle shop at the time. The respondent and the accomplice stole $500 in cash and two bottles of Jack Daniel whisky from the first bottle shop. At the second shop, which they entered about half an hour after entering the first shop, they stole $700 in cash. When interviewed the respondent said he committed the robberies because he needed money to pay drug debts. 6There being no issue in relation to the individual sentences debate in this Court was confined to the extent of the accumulation. His Honour provided only 3 months which it was submitted by the Crown was manifestly inadequate. The respondent was 21 years of age at the date of the offence and had a history of prior convictions for affray and common assault. However, it is apparent from the sentencing judge's remarks on sentence that his Honour formed the view that the respondent had good prospects of success in successfully rehabilitating himself. It became apparent upon his incarceration that he had been suffering from an undiagnosed psychiatric condition and had been abusing both prohibited drugs and alcohol. He is now receiving treatment and had already demonstrated considerable progress within the prison system before he was sentenced. 7When sentencing the respondent his Honour was conscious of the fact that the first two offences were committed at the same premises and during the course of, in effect, the same robbery. The Crown does not complain that these sentences were made wholly concurrent. 8When sentencing the respondent it is apparent that his Honour was mindful of this Court's decision in R v Cahyadi (2007) NSWCCA 1 where the court emphasised the necessity to impose a separate sentence for unrelated robberies even though it was committed on the same day. However, in Cahyadi Howie J emphasised that there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The ultimate issue is whether or not the total sentence will be adequate provided by making the sentences wholly concurrent or whether some accumulation is required. The question is whether or not the criminality for each of the offences is adequately reflected in the overall sentence. 9In Hammoud (2000) 118 A Crim R 66 Simpson J indicated that a decision as to whether or not to accumulate sentences imposed in relation to multiple offences is in the end an exercise of discretion. There will be many cases where individual judges may take a different view each being correct. 10In the present case his Honour was careful when sentencing to mark out the separate offences and I am not persuaded that by providing an accumulation of only 3 months his Honour fell into error. Although I may have myself provided for a greater degree of accumulation I would not have increased the sentence to a degree which would lead to the conclusion that the sentence which his Honour imposed was manifestly inadequate. 11For these reasons I joined in the order of the court dismissing the Crown appeal. 12ADAMS J: For the reasons expressed by McClellan CJ at CL I agreed with the order made by the Court on 3 February 2011. 13BUDDIN J: For the reasons expressed by McClellan CJ at CL I joined in the order made by the court on 3 February 2011.