Regina v Damian John Cuff
[2004] NSWCCA 157
•11 May 2004
CITATION: Regina v Damian John Cuff [2004] NSWCCA 157 HEARING DATE(S): 11 May 2004 JUDGMENT DATE:
11 May 2004JUDGMENT OF: Dunford J at 1; Adams J at 14; Howie J at 15 DECISION: Crown appeal dismissed. CATCHWORDS: Criminal Law - sentencing - Crown appeal - multiple offences - Crown not seeking any variation in overall sentence - Court's discretion to dismiss appeal. LEGISLATION CITED: Crimes Act 1900 ss 90A, 97(1), (2)
Criminal Appeal Act 1912 ss 5D, 7(1)(a)CASES CITED: Everett v The Queen (1994) 181 CLR 295
R v Carr [2002] NSWCCA 434PARTIES :
Regina v Damian John Cuff FILE NUMBER(S): CCA 60499/03 COUNSEL: B J Knox SC (Crown)
H L A Cox (Respondent)SOLICITORS: S Kavanagh (Crown)
S E O'Connor (Respondent)
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/41/0077 LOWER COURT
JUDICIAL OFFICER :Bell DCJ
60499/03
TUESDAY, 11 MAY 2004DUNFORD J
ADAMS J
HOWIE J
1 DUNFORD J: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against the sentence imposed on the respondent by his Honour Judge Bell in the District Court at Sydney on 20 June 2003, following his conviction after trial on one count of aggravated armed robbery and one count of detain with intent to hold for advantage.
2 The offence of aggravated armed robbery carries a maximum penalty of imprisonment for 25 years: Crimes Act 1900 s 97(2), and the offence of detain with intent to hold for advantage, at the time, carried a maximum penalty of 20 years imprisonment: Crimes Act 1900 s 90A, since repealed.
3 On 20 June 2003, his Honour sentenced the respondent for the offence of aggravated armed robbery to imprisonment for 11 years to date from 22 February 2003 with a non-parole period of 8 years to expire on 21 February 2011, and for the offence of detain with intent to hold for advantage, to a fixed term of imprisonment for 4 years to commence from 22 February 2002 and to expire on 21 February 2006.
4 The overall effect of the sentences was an imprisonment for a total term of 12 years with an effective non-parole period of 9 years.
5 On 5 December 2003, the Director of Public Prosecutions signed a notice of appeal which was served on the respondent on 7 December.
6 The Crown submits not that the sentence of 4 years imprisonment imposed for the count of detain with intent to hold for advantage was inadequate, but that it was imposed on the basis of mistake of fact by the sentencing judge as to the sentences imposed on a co-offender.
7 That mistake arose from information given by the Crown as to what sentences had been imposed on the co-offender Mark Jenkins, who was convicted after trial of 2 offences, namely detain with intent to hold for advantage and assault with intent to rob in circumstances of aggravation, the latter offence being contrary to s 97(1) of the Crimes Act, which is punishable by a maximum penalty of imprisonment for 20 years.
8 On those charges, Mark Jenkins was sentenced to 10 years imprisonment with a non-parole period of 7 years for detain with intent to hold for advantage, which sentence was partly concurrent and a sentence of 4 years for assault with intent to rob in circumstances of aggravation. An appeal against those sentences by Jenkins was dismissed by this Court on 1 December 2003.
9 Without going into the details of the offences, the submission on behalf of the Crown is that as a result of being given the wrong information in relation to the offences imposed on Jenkins, his Honour imposed on this respondent the longer term for the offence of aggravated armed robbery, whereas he should have imposed the longer term for the offence of detain with intent to hold for advantage.
10 The Crown does not submit that the overall sentences imposed on the respondent should be varied in any way but, in effect, seeks a tidying up of the sentences to make them more consistent with the sentences imposed on Jenkins.
11 Crown appeals have been described as rare and exceptional: Everett v The Queen (1994) 181 CLR 295 at 299 and not to be encouraged, and there is certainly a discretion in the Court to decline to interfere even if the grounds upon which the appeal is based are made out. In my view, this is a case where, as the Crown does not seek any variation to the effective overall terms of imprisonment to be served by the respondent, this Court, in the exercise of its discretion should decline to interfere.
12 It is conceded that if the Court were to interfere and, as it were, increase the sentence for detain with intent to hold for advantage, it would be appropriate to reduce the sentence for the aggravated armed robbery in accordance with s 7(1)(a) of the Criminal Appeal Act 1912, and if the Court were to interfere pursuant to the Crown appeal, I would be inclined to make an appropriate order under that sub-section.
13 However, for the reasons I have given, I am of the view that in the exercise of its discretion, the Court should decline to interfere and I would propose that the Crown appeal be dismissed.
14 ADAMS J: I agree.
15 HOWIE J: I agree. The decision of the Court is consistent with the view expressed by this Court in the decision of R v Carr [2002] NSWCCA 434 at paragraph 35.
16 DUNFORD J: The order of the Court will be as I have indicated.
Last Modified: 05/27/2004
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