2.The sentences imposed on 26 May 2022 are set aside.
3.The offender is resentenced as follows:
(a)    On the charge of robbery (5 December 2021) (CC2022/768) the offender is convicted and sentenced to
13 months and 15 days’ imprisonment (reduced from 18 months), to commence on 7 March 2022 and end on 21 April 2023.
(b)    On the charge of aggravated robbery (6 December 2021) (CC2022/765) the offender is convicted and sentenced to 31 months and 15 days’ imprisonment (reduced from 42 months), to commence on 7 June 2022 and end on 21 January 2025.
(c)    On the charge of aggravated robbery (6 December 2021) (CC2022/766) the offender is convicted and sentenced to 27 months’ imprisonment (reduced from 36 months), to commence on 21 May 2023 and end on 20 August 2025.
(d)    On the charge of common assault (6 December 2021) (CC2022/771) the offender is convicted and sentenced to 4 months and 15 days’ imprisonment (reduced from six months), to commence on 7 May 2025 and end on 21 September 2025.
(e)    On the charge of robbery (6 December 2021) (CC2022/770) the offender is convicted and sentenced to 15 months’ imprisonment (reduced from 20 months), to commence on 21 September 2024 and end on 20 December 2025.
(f)     On the charge of aggravated robbery (6 December 2021) (CC2022/767) the offender is convicted and sentenced to 27 months’ imprisonment (reduced from 36 months), to commence on 21 April 2024 and end on 20 July 2026.
(g)    On the charge of robbery (6 December 2021) (CC2022/769) the offender is convicted and sentenced to 15 months’ imprisonment (reduced from 20 months) to commence on 21 July 2025 and end on 20 October 2026.
(h)    On the charge of attempted theft (7 December 2021) (CC2021/11757) the offender is convicted and sentenced to 22 days’ imprisonment (reduced from four weeks), to commence on 7 October 2026 and end on 28 October 2026.
(i)     On the charge of aggravated burglary (7 December 2021) (CC2021/11756) the offender is convicted and sentenced to 17 months and 7 days’ imprisonment (reduced from 22 months), to commence on 21 September 2025 and end on 27 February 2027.
(j)     On the charge of minor theft (7 December 2021) (CC2021/11760) the offender is convicted and sentenced to 22 days’ imprisonment (reduced from four weeks), to commence on 7 February 2027 and end on 28 February 2027.
(k)    On the charge of possess prohibited substance (7 December 2021) (CC2022/2285) the offender is convicted and sentenced to 22 days’ imprisonment (reduced from four weeks), to commence on 13 February 2027 and end on 6 March 2027.
(l)     The non-parole commences on 7 March 2022 and end on 6 March 2025.

Catchwords: APPEAL – CRIMINAL LAW – Crown appeal against sentence –

aggravated robbery, common assault…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v White

Details

AGLC: R v White [2023] ACTCA 35
Case: [2023] ACTCA 35
Decision Date: 13 September 2023

CaseChat Overview and Summary

The Crown appealed against the sentences imposed on the respondent, R v White, in the District Court. The respondent had been convicted of aggravated robbery, common assault, and several theft-related offences. The Crown argued that the individual sentences, the degree of concurrency between them, and the resulting total effective sentence were manifestly inadequate.

The central legal issue before the Court of Appeal was whether the sentencing judge had erred by imposing a total effective sentence that failed to adequately reflect the totality of the respondent's criminality, particularly in light of the multiple offences committed against different victims. The Court was required to determine if the sentencing approach, which involved a high degree of concurrency, amounted to an impermissible "discount for multiple offending" and whether the overall sentence was so lenient as to be outside the bounds of a proper exercise of discretion.

The Court of Appeal reasoned that while the length of individual sentences and the degree of concurrency are relevant considerations, the primary focus of the enquiry must be on the total effective sentence. It found that the high degree of concurrency applied in this case did not adequately reflect the seriousness and extent of the criminality involved in the separate offences committed against distinct victims. Consequently, the Court concluded that the total effective sentence imposed by the sentencing judge was manifestly inadequate.

The appeal was allowed, and the respondent was re-sentenced by the Court of Appeal.

Orders