Sentencing Trends & Issues No 26 — Sentencing Trends for Armed Robbery and Robbery in Company: The Impact of the Guideline in R v Henry

NUMBER 26 – FEBRUARY 2003

Sentencing Trends for Armed Robbery and Robbery in Company: The Impact of the Guideline in R v Henry

Lynne A Barnes, Senior Research Officer (Legal)
Patrizia Poletti, Senior Research Officer (Special Projects)
Introduction

On 12 May 1999, following submissions by the Crown, the Full Bench¹ of the NSW Court of Criminal Appeal (CCA) handed down its second guideline judgment in R v Henry Barber Tran Silver Tsoukatos Kyroglou Jenkins² (Henry). This guideline judgment was directed at the offences of armed robbery and robbery in company, pursuant to s 97(1) of the Crimes Act 1900 (NSW). Like the first guideline judgment of R v Jurisic,³ the impetus for the CCA’s decision to issue the second guideline judgment was the dual concerns of systematic excessive leniency and inconsistency in sentencing practice.
This study:

• sets out the principal factors that influenced the CCA’s decision to issue a guideline judgment for armed robbery and robbery in company under s 97(1) of the Crimes Act
• provides an overview of the guideline
• outlines the methodology used in the study, including details of the time frame, types of data and statistical analysis
• presents the results of the data analysis and outlines the effects of the Henry guideline judgment on sentencing practice for the offences of armed robbery and robbery in company.

It is beyond the scope of this study to examine in detail all the various factors that either aggravate or mitigate the sentence imposed in robbery offences. An in-depth analysis of all robbery offences subject to s 97 of theCrimes Act will be included in a forthcoming monograph.
The need for a guideline judgment

In Henry the Crown invited the CCA to provide a sentencing guideline in respect of s 97(1). The court had before it six Crown appeals under s 97(1), and one sentence severity appeal involving an aggravated robbery offence pursuant to s 97(2). Section 97 of the Crimes Act provides:

97. Robbery etc or stopping a mail, being armed or in company
(1) Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, or stops any mail, or vehicle, railway train, or person conveying a mail, with intent to rob, or search the same, shall be liable to imprisonment for twenty years.(2) Aggravated offence
A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) when armed with a dangerous weapon.A person convicted of an offence under this subsection is liable to imprisonment for 25 years.

(3) Alternative verdict
If on the trial of a person for an offence under subsection (2) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under subsection (1), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.

In support of the Crown’s submission inviting the CCA to promulgate a sentencing guideline for armed robbery under s 97(1), the court was asked to consider a range of general and primary material not before the sentencing judge in the individual matters. The Crown argued that this material was “relevant to the determination of individual cases, as well as to the formulation of sentencing guidelines of general application”.⁴

The general material consisted of crime statistics, academic literature on the effects of armed robbery on victims, and a report by a clinical psychologist on the psychological impact on victims of armed robbery.⁵ The court considered only the crime statistics and academic literature to be relevant. While robbery is a relatively rare crime, the court noted that the crime statistics demonstrated an increased incidence of robbery in recent years, which should be given weight when considering both whether to issue a guideline judgment and what changes to past sentencing practice would be appropriate.⁶ The academic literature documented the way in which “armed robbery is perceived as a life threatening situation for the majority of victims”.⁷ In addition, it reinforced what the court already knew: robbery is a serious crime, requiring condign punishment.⁸ It is not only a property offence, but also an offence against the person, that involves either actual or threatened violence, that often has a continuing adverse effect on the victim.

The primary material presented to the court was the sentencing statistics compiled by the Judicial Commission of NSW. These statistics related to 835 cases involving a conviction for aprincipal offence under s 97(1) of the Crimes Act, between December 1994 and October 1998. Following a detailed examination of these statistics the court observed that:

(i) Non-custodial sentences are not confined to exceptional cases. The fact that 147 individuals received non-custodial sentences out of a total of 835 (ie 18%) is not consistent with an `exceptional case’ test.(ii) The leniency of the sentencing pattern is also suggested in the full terms. (Over 60% of those who were in fact sentenced to prison received one fifth or less than the maximum, ie four years or less.)

(iii) The pattern of leniency is reinforced by the extent to which the statutory ratio between minimum and fixed terms has been altered so that over 60% of those who do receive prison sentences, receive a minimum or fixed term of two years or less.

(iv) The large proportion of lenient sentences is also suggestive of inconsistency in sentencing practices between the group who receive full terms of 3-4 years or thereabouts and the group below that.⁹

The court concluded that “these statistics strongly suggest both inconsistency in sentencing practice and systematic excessive leniency in the level of sentences” handed down for these offences in the District Court.¹⁰Therefore, “a guideline judgment is required to ensure that the pattern of leniency and inconsistency indicated in the sentencing statistics is discontinued”.¹¹

Spigelman CJ stressed that the principal reason for issuing the guideline was not to increase the penalties for these offences, but to overcome “the very significant proportion of cases in which non-custodial sentences have been imposed”. Based on the court’s analysis of past sentencing practice for armed robbery, a reduction in the number of non-custodial sentences handed down for armed robbery was likely to have a more significant deterrent affect than any increase in penalties for these offences.¹²
The guideline judgment

In Henry the court held that a category of case, which was sufficiently common for the purpose of determining a guideline, would comprise the following characteristics:

(i) Young offender with no or little criminal history(ii) Weapon like a knife, capable of killing or inflicting serious injury

(iii) Limited degree of planning

(iv) Limited, if any, actual violence but a real threat thereof

(v) Victim in a vulnerable position such as a shopkeeper or taxi driver

(vi) Small amount taken

(vii) Plea of guilty, the significance of which is limited by a strong Crown case.¹³

While the court acknowledged that it was possible to set a starting point for sentences in cases which contained these seven characteristics, it declined to do so, preferring instead to “identify a narrow sentencing range within which this Court would expect sentences in such cases to fall”.¹⁴ The narrow sentencing range, which was to be viewed as a starting point, was set at between four and five years for a full term. The primary reasons given by the court for providing a range of sentences were:

(i) The seven characteristics identified above do not represent the full range of factors relevant to the sentencing exercise.(ii) Many of the seven identified characteristics contain within themselves an inherent variability, eg different kinds of knives or weapons in (ii); extent of `limited actual violence’ in (iv); degree of vulnerability in (v); amount in (vi).¹⁵

The Chief Justice emphasised that “aggravating and mitigating factors will justify a sentence below or above the range”.¹⁶In particular, the court stressed that in cases where drug addiction is a factor it “is a circumstance relevant to the sentencing exercise but it is not of itself a mitigating factor”.¹⁷
Methodology

The time frame
This study examines cases for the five-year period from 11 November 1996 to 11 November 2001. To enable a comparative analysis of the sentencing trends for offences under s 97(1), the five year period was divided into two periods: two and a half years before (12/11/1996-11/5/1999) and two and a half years after (12/5/1999-11/11/2001) the issuing of the guideline judgment inHenry.

The data and its limitations
Two categories of data were subject to analysis.The first category was based on information received by the Judicial Commission of NSW from the NSW Bureau of Crime Statistics and Research (BOCSAR). It comprised first instance sentencing outcomes from the higher courts¹⁸ where the principal offence was armed robbery or robbery in company pursuant to s 97(1) of the Crimes Act.¹⁹ As the study was only concerned with the principal offence for each offender, if an offender had been convicted of more than one offence, the principal offence was determined to be:

(a) the offence attracting the highest penalty, or(b) if two or more offences attracted the same penalty, the offence with the highest statutory maximum sentence, or

(c) if two offences had the same maximum statutory penalty, the offence listed first on the indictment.

The second category of data analysed was all CCA outcomes in the pre and post Henry periods, where the principal offence was either armed robbery or robbery in company. The first instance data relating to these CCA matters were adjusted in two ways. First, to determine whether a matter was to be included in the pre or post Henry periods,any first instance matters involving an appeal against sentence on or after the date of the guideline judgment²⁰ were treated as postHenry cases. Second, additional changes were made to the data to take into account CCA outcomes as follows:

(a) If a conviction appeal resulted in an acquittal or a new trial, the record was removed from the data set.(b) All sentence appeals which were remitted to the lower court for re-sentencing, were also excluded from the data set.

(c) New penalties from successful sentence appeals replaced the first instance penalties.

Prior to 1999 the Judicial Commission statistics did not include cases involving cumulative sentences. This was because matters involving convictions for multiple offences sometimes undervalued the appropriate penalty for the principal offence. However, following the decision in Pearce v The Queen,²¹ the way in which the sentencing courts were obliged to construct cumulative sentences was clarified to require courts to impose an appropriate penalty for each offence, before determining how to aggregate the sentences.

From January 1999 (since Pearce),the Judicial Commission statistics have included all sentences for principal offences, including cumulative/consecutive sentences, under the statistics for Head Sentences/Full Terms. However, cumulative/consecutive sentences are not included in the statistics for Non-Parole Periods/Minimum Fixed Terms, as to do so would distort these statistics.

Analysis
The analysis of the data in this study was primarily descriptive in nature (frequencies and cross tabulations). However, non-parametric tests of significance (chi-square and median tests) were used to ascertain whether there was a statistically significant difference²² in the sentencing patterns between the pre and post Henry periods. The statistical analysis was undertaken using the Statistical Package for the Social Sciences (SPSS).

First instance data
The analysis of the first instance sentencing data for armed robbery and robbery in company was undertaken along similar lines to the CCA’s analysis of the Judicial Commission statistics in Henry. This analysis focused on the:

(a) characteristics of offenders(b) types of penalties handed down

(c) quantum of penalties for full time custodial sentences

(d) relationship between the statutory maximum penalty and the head sentence

(e) relationship between the head sentence and the non-parole period

(f) level of consistency of sentences as measured by the length of full time custodial sentences, and the extent to which the sentences cluster around the middle 50% and 80% sentence ranges.²³

After examining the Judicial Commission statistics for s 97(1), the court in Henry used (b)-(e) above to conclude that a pattern ofexcessive leniency was evident in sentences handed down for these offences. Consequently, this also suggested a pattern of inconsistency in sentencing practice.

There are many factors, aggravating and mitigating, which can be taken into account at sentencing that may result in prison terms which fall at the extreme ends of the sentencing range. For this reason measures referred to in (f) were used to determine the extent of inconsistency in sentencing practice for armed robbery and robbery in company.

CCA data
In Henry the court reiterated what it said in Jurisic, that one of the factors relevant to the consideration of the need to issue a guideline judgment for a particular offence was the history of Crown appeals in relation to that offence.²⁴ Accordingly, this study examined all appeals to the CCA in the pre and post Henry periods, where the principal offence was armed robbery or robbery in company pursuant to s 97(1) of the Crimes Act. This involved:

(a) an examination of the nature and outcome of all appeals to the CCA(b) an analysis of all Crown appeals (with particular emphasis on the outcome of Crown appeals where a non-custodial sentence was given at first instance. The sentencing principle from R v Roberts²⁵ being that at first instance a non-custodial sentence should be given only in exceptional circumstances).

Table 1: Selected characteristics of offenders sentenced for armed robbery and robbery in company under s 97(1) of the Crimes Act 1900 — pre and post Henry

(a) At liberty means that the offender was not subject to any form of court order or restriction affecting their freedom.

Results of the analysis

In the five-year period encompassed by this study there were 1,579 cases where the principal offence involved a conviction for either armed robbery or robbery in company under s 97(1) of the Crimes Act. In the preHenry period there were 695 cases, compared to 884 cases in the post Henry period. The noticeably higher number of cases in the post Henry period may be partly explained by the inclusion of cases involving cumulative/consecutive sentences, and the transfer of a number of cases from the pre to post Henry period when the cases were dealt with by the CCA on or after the date of the guideline judgment in Henry.

Overview of offender characteristics
As Table 1 illustrates, there was very little difference in the selected characteristics of offenders in the pre and post Henry periods. The majority of offenders:

• were male (91.9%)
• were aged 30 years or less (82.9%), with a median²⁶ age of 22 years
• had prior convictions (72.8%)
• were at liberty at the time the offence was committed (82.3%)
• had pleaded guilty (93.0%) to one count of the principal offence (84.6%).

The only marked difference evident between the two periods was for offenders who had Form 1 matters taken into account at sentencing. In the post Henry period there were significantly more instances of these cases (39.1% compared to 31.7% pre Henry).²⁷

First instance outcomes
Types of penalties
A full time custodial sentence in both the pre and post Henry periods was the most likely outcome for an offender convicted of armed robbery or robbery in company pursuant to s 97(1) of the Crimes Act. An examination of the range of penalty types in Table 2 shows a 6.8% difference in the proportion of offenders receiving some form of custodial sentence in the pre and postHenry periods.²⁸

Table 2: Trends in overall penalty types for armed robbery and robbery in company under s 97(1) of the Crimes Act1900 — pre and post Henry

(a) This penalty option became available from 21/2/1997 and is not available for the offence of armed robbery but is available for robbery in company offences.(b) This penalty option became available from 3/4/2000.

(c) Includes both s 558 recognisances and s 9 good behaviour bonds, which replaced s 558 recognisances on 3/4/2000.

(d) Includes both s 556A non-conviction orders and s 10 non-conviction orders, which replaced s 556A non-conviction orders on 3/4/2000.

Overall, the rate for full time custodial sentences increased from 81% pre Henry to 85.2% post Henry. This represents a 4.2% difference in the use of this penalty in the two periods. There was also a 2.6% difference in the proportion of offenders who received other types of custodial penalties (from 7.2% pre Henry to 9.8% post Henry).

The overall increase in some form of custodial penalty was at the expense of a reduction in non-custodial penalties. In particular, the reduction was evident in the use of community service orders (CSO) (from 7.2% preHenry to 2.8% post Henry), and bonds/recognisances (from 4.3% pre Henry to 2.1% post Henry). Other non-custodial penalties were rarely used in the pre Henry period and not used at all in the post Henry period.

Offender characteristics
While it was beyond the scope of this study to analyse the full set of characteristics set out by the court in Henry, it was possible to break down the results by the following offender characteristics,²⁹ most of which were found to have had a significant impact on the type of penalty imposed:

• Age — Offenders aged under 21 years were less likely than older offenders to receive a full time custodial penalty (73.4% compared to 89.7%).³⁰
• Form 1 matters — Offenders having Form 1 matters taken into account at sentencing were more likely than other offenders to receive a full time custodial penalty (91.0% compared to 79.1%).³¹
• Number of counts of the principal offence — Offenders with multiple counts of the principal offence were more likely than offenders withonly one count to receive a full time custodial penalty (91.8% compared to 81.8%).³²
• Priors — Offenders with no prior convictions were less likely than offenders with prior convictions to receive a full time custodial penalty (65.3% compared to 85.2% of offenders with prior convictions of a different type;91.7% of offenders with prior convictions of the same type; and 97.9% of offenders with prior convictions of the same type with custody).³³
• Liberty at time of the offence — At the time the offence was committed, offenders at liberty were less likely than offenders under some form of court order or restriction to receive a full time custodial penalty (80.6% compared to 96.1%).³⁴

Two other offender characteristics, while not statistically significant,³⁵ did attract higher penalties.
They were:

• Gender — Proportionately more male offenders than female offenders were given a full time custodial penalty (84.2% compared to 74.5%).³⁶
• Plea — Ninety percent of offenders who pleaded not guilty received a full time custodial penalty compared to 82.8% of offenders who pleaded guilty.³⁷

Quantum of penalties for full time custodial sentences
Table 3 shows that the median length of fulltime custodial head sentences for all offenders convicted of armed robbery or robbery in company in both periods was 48 months. While no difference was observed in the median length of head sentences, there was a noticeable increase in the median length of the non-parole periods in the postHenry period (18 months pre Henry to 24 months post Henry).³⁸

It can be seen in Table 3 that regardless of the time period, at least 50% of all cases received a head sentence of 36-60 months in full time custody. While there was no narrowing around the middle 50% range for non-parole periods, there was an increase in the severity of the penalty lengths, from 12-30 months pre Henry to 18-36 months post Henry. However, when the cases clustering around the 80% range were examined, a narrowing of the bandwidth for both head sentences and non-parole periods was evident. Head sentences went from 24-78 months pre Henry to 32-72 months postHenry, while non-parole periods went from 9-48 months pre Henry to 12-45 months post Henry.

Table 3: Severity and consistency of full time custodial terms (head sentences and non-parole periods) for armed robbery and robbery in company under s 97(1) of the Crimes Act 1900 — pre and post Henry

Period	Full time custody		If full time custody		Head sentence(a)		Non-parole period(b)
	n	%	median	middle	middle	full	median	middle	middle	full
term	term	term	term	50% range	80% range	range	term	50% range	80% range	range
			(mths)	(mths)	(mths)	(mths)	(mths)	(mths)	(mths)	(mths)
pre Henry	563	81.0	48	36-60	24-78	4-192	18	12-30	9-48	2-144
post Henry	753	85.2	48	36-60	32-72	12-222	24	18-36	12-45	3-168

(a) The head sentence refers to the non-parole period (or minimum term) and additional term or fixed term.(b) The non-parole period also refers to the minimum term or fixed term. Please note, all cases involving cumulative/consecutive or part cumulative/part consecutive sentences have been excluded from the analysis regarding non-parole periods.

Figure 1: Length of full time custodial terms (head sentences and non-parole periods) for armed robbery and robbery in company under s 97(1) of the Crimes Act 1900 — pre and post Henry

It should be emphasised that consistency in sentencing practice should reflect the combined effect of both the type and quantum of the penalty handed down. In this study a small percentage (4.2%) of offenders who received a more lenient type of penalty in the pre Henry period, received a sentence of full time custody in the postHenry period. Consequently, these offenders may have received sentences at the lower end of the imprisonment spectrum, thereby lowering the overall average term of full time custody. The distribution of full time custodial sentences (head sentence and non-parole period) displayed in Figure 1 clearly shows a shift to more severe penalties.

The relationship between the statutory maximum penalty and the full time custodial head sentence
An examination of the relationship between the statutory maximum penalty³⁹ available under s 97(1) of the Crimes Act and the full time custodial head sentences handed down at first instance reveals:

• no significant change from the preHenry (1.2%) to the post Henry (0.9%) period in the proportionof offenders who received more than half the statutory maximum penalty, that is, ten years imprisonment
• no significant change in the proportion of offenders who received more than a quarter of the maximum statutory penalty, that is, five years imprisonment (20.8% preHenry and 20.6% post Henry)
• a decrease in the proportion of offenders who received one-fifth or less of the maximum statutory penalty, that is, four years imprisonment,from 65.2% pre Henry to 58.7% post Henry.⁴⁰

Figure 2: The relationship between non-parole periods and full time custodial head sentences for armed robbery and robbery in company under s 97(1) of theCrimes Act 1900 — pre and post Henry

The relationship between non-parole periods and full time custodial head sentences
The statutory prescription for the relationship between the full time custodial head sentence and the non-parole period is that the non-parole period must not be less than three-quarters of the term of the head sentence, unless the court finds that there are special circumstances which warrant a reduction in the non-parole period.⁴¹ However, it would appear from Figure 2 that in the majority of cases the sentencing courts found special circumstances existed, thereby allowing for a reduction in the statutory ratio in the vast majority of cases (94.0% pre Henry and 93.6% postHenry).

Figure 2 also sets out the relative amount of prison time served by offenders, that is, the non-parole period as a fraction of their head sentence.It is clear that despite the statutory prescription,the most common ratio between the non-parole period

and the head sentence in both periods was 1:2,that is, the non-parole period was set at half of the head sentence (19.2% pre Henry and 27.9% postHenry). In addition, Figure 2 clearly shows that following the guideline judgment in Henry, there was a contraction in the ratio between the non-parole periods and head sentences. This is evidenced by the higher proportion of post Henry cases which are closer to the statutory ratio (3:4) and greater than 1:2 (38.9% post Henry compared to 29.8% pre Henry). In other words, since the guideline judgment was handed down, more offenders received a non-parole period greater than half the head sentence.

Court of Criminal Appeal outcomes
Of a total of 179 matters relating to armed robbery and robbery in company pursuant to s 97(1) of the Crimes Act that came before the CCA in the study period, 44 appeals were in the pre Henry period and 135 appeals in the post Henry period. These figures include all types of appeals:conviction, sentence severity and Crown. Conviction appeals were excluded from any further analysis since the focus of the study was on the type and quantum of sentences. This left 158 appeals for analysis: 36 pre Henry and 122 post Henry.

Table 4: Outcome for all CCA sentence appeals for armed robbery and robbery in company under s 97(1) of the Crimes Act 1900 — pre and post Henry

	Pre 12/11/96-11/5/99 n = 36		Post 12/5/99-11/11/01 n = 122
	n	%	n	%
Crown appeals	13	36.1	29	23.8
Successful outcome	8	61.5	18	62.1
Result of outcome
New sentence	7	87.5	14	77.8
Remit for re-sentence	1	12.5	1	5.6
Restructure sentence(a)	0	0.0	3	16.7
Sentence severity appeals	23	63.9	93	76.2
Successful outcome	7	30.4	44	47.3
Result of outcome
New sentence	6	85.7	41	93.2
Remit for re-sentence	0	0.0	0	0.0
Restructure sentence(a)	1	14.3	2	4.5
Other(b)	0	0.0	1	2.3

(a) A restructured outcome refers to particular sentences that have not changed in length but that have been altered in order to increase or decrease the aggregate sentence. This is most often accomplished by a change in the starting date of a particular sentence.

(b) While the penalty did not change, the appeal was upheld to allow the offender to be formally released at the conclusion of the non-parole period.

It can be seen in Table 4 that following the issuing of the sentencing guideline there was a decrease in the proportion of Crown appeals coming before the CCA (36.1% pre Henry, falling to 23.8% in the post Henryperiod). Approximately two-thirds of Crown appeals were successful (61.5% pre Henry and 62.1% post Henry). Of the successful Crown appeals in the pre Henry period half (4 cases or 50.0%) related to a penalty other than full time custody handed down at first instance (two received periodic detention,⁴² one was given a bond,⁴³ and one was placed on a Griffith Remand⁴⁴). Following the successful outcome of these appeals, three offenders received

a penalty of full time custody, and one was remitted to the District Court for re-sentencing. In the post Henry period just over one-quarter (5 cases or 27.6%) of Crown appeals were in respect of a penalty other than full time custody (one received periodic detention,⁴⁵ one received a suspended sentence,⁴⁶ and three were given a bond⁴⁷). Following the successful outcome of these appeals, two offenders received a penalty of full time custody, two offenders were given periodic detention, and one was remitted to the District Court for re-sentencing.

Conversely, the proportion of appeals against sentence severity increased (from 63.9% pre Henry to 76.2% post Henry). Of these appeals 30.4% were successful pre Henry compared to 47.3% in the post Henry period.
Conclusions

The sentencing guidelines promulgated in the Henry judgment were designed to overcome what the CCA described as the “systematic excessive leniency and inconsistency in sentencing practice in the District Court” for armed robbery and robbery in company offences pursuant to s 97(1) of the Crimes Act.

In reaching its decision to deliver a sentencing guideline in respect of these offences, the CCA was persuaded by material presented by the Crown that it was appropriate to promulgate a sentencing guideline. The material revealed:

• an increase in the incidence of armed robbery in the years leading up to the judgment
• the continuing adverse effect robbery has on the victims of these offences
• a systematic leniency and inconsistency in sentences for these offences.

In addition, the court noted the high number of successful Crown appeals in relation to these offences.

The results of our present analysis suggest that the sentencing guideline has been successful in reducing the “systematic excessive leniency and inconsistency in sentencing practice” in respect of armed robbery and robbery in company.

This conclusion is supported by our findings that post Henry there was:

• an increase in the overall proportion of offenders receiving more severe penalties as evidenced by an increase in the proportion of offenders receiving a sentence of full time custody (from 81% pre Henty to 85.2% postHenry) and by the greater proportion of offenders who received some other form of custody (7.2% pre Henry compared to 9.8% post Henry)
• a decrease in the proportion of offenders receiving one-fifth or less of the statutory maximum penalty (65.2% pre Henry compared to 58.7% post Henry)
• an increase in the proportion of cases where the ratio between the non-parole period and head sentence was greater than 1:2 (from 29.8% pre Henry to 38.9% post Henry.
• a decrease in Crown appeals from 36.1% pre Henry to 23.8% post Henry.

The aim of this study was to provide an analysis of the impact on sentencing of the Henry guideline. A more detailed study to be undertaken by the Judicial Commission will explore, inter alia, the relationship of the seven characteristics identified in the Henry guideline on sentencing for offences under s 97 of the Crimes Act 1900 (NSW).

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Endnotes

1  Comprising Spigelman CJ, Wood CJ at CL, Newman J, Hulme J and Simpson J.

2  (1999) 46 NSWLR 346; (1999) 106 A Crim R 149.

3  (1998) 45 NSWLR 209; (1998) 101 A Crim R 259; (1998) MVR 49.

4  (1999) 46 NSWLR 346 at [49].

5  Ibid at [50]. All the respondents and the applicant in the appeals before the court objected to a consideration of this material in the individual cases. The objections were based on s 12(1) of the Criminal Appeal Act1912 (NSW) and s 29A(2) of the Criminal Procedure Act 1986 (NSW).

6  Ibid at [93].

7  Ibid at [95].

8  Ibid at [99].

9  Ibid at [109].

10  Ibid.

11  Ibid at [125].

12  Ibid at [210]-[211].

13  Ibid at [162] (Hulme J dissenting).

14  Ibid at [163].

15  Ibid at [164].

16  Ibid at [169].

17  Ibid at [193]; see also the considerations of Wood CJ at CL and Simpson J at [214] on the relevance of drugs in the sentencing process.

18  Reference to higher courts includes both the NSW Supreme and District Courts.

19  Offences under this section which were not included in the analysis were: assault with intent to rob, the inchoate offences of aid/abet, accessory before the fact (s 346), or after the fact (s 349), attempt (s 344A), and conspiracy to rob (common law). The decision not to include these offences was made to reflect the specific offences subject to the guideline judgment.

20  12 May 1999.

21  (1998) 194 CLR 610.

22  A confidence interval of 99% was used throughout this study.

23  Cases clustered around the 50% range exclude the 25% of cases at either end of the imprisonment spectrum. Likewise, when the 80% range was used 10% of cases at either end were excluded.

24  (1999) 46 NSWLR 346 at [111].

25  (1994) 73 A Crim R 306 at [308].

26  The median describes the midpoint where 50% of cases fall below or above.

27  Chi square test, p < 0.002.

28  Chi square test, p < 0.001.

29  These are the same offender characteristics used by the Judicial Commission of NSW on the Judicial Information Research System (JIRS) in conjunction with the statistics for each offence to accurately determine the sentences handed down for offenders with similar characteristics. Two of these characteristics, Age and Plea, were included in the list of the seven characteristics that would bring a case under the guideline judgment.

30  Chi square test, p < 0.001.

31  Chi square test, p < 0.001.

32  Chi square test, p < 0.001.

33  Chi square test, p < 0.001.

34  Chi square test, p < 0.001.

35  At a 99% confidence level.

36  Chi square test, p < 0.012.

37  Chi square test, p < 0.150.

38  Median test, p < 0.003.

39  Twenty years imprisonment.

40  Chi square test, p <0.017

41  The Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2).

42 R v Qi (1998) 102 A Crim R 172;R v Basaga & Weleilakeba (unrep, 19/8/98, NSWCCA).

43 R v Wright (unrep, 28/2/97, NSWCCA).

44 R v Moore (unrep, 23/4/98, NSWCCA).

45 R v Hoschke [2001] NSWCCA 317

46 R v Pamplin [2001] NSWCCA 327; s 12 of the Crimes (Sentencing Procedure) Act 1999.

47 R v Tran [1999] NSWCCA 109; R v Mastronardi [2000] NSWCCA 12; R v Griggs [2000] NSWCCA 33.

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ISSN 1036 4722

Published by the Judicial Commission of New South Wales

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Disclaimer
This paper was prepared by officers of the Judicial Commission for the information of the Commission and for the information of judicial officers. The views expressed in the report do not necessarily reflect the views of the Judicial Commission itself but only the views of the officers of the Commission who prepared this report for the Commission.