Towers v R [2025] NSWCCA 142

Towers v R [2025] NSWCCA 142 · Read the judgment on AustLII

Catchwords: Sentencing – Henry Guideline – objective versus subjective features of the offending

In this decision the Court of Criminal Appeal (‘CCA’) has drawn attention to the importance of keeping the objective and subjective factors of sentencing separate – and more particularly the importance of not allowing the existence of a guideline judgment to detract from the obligation to make distinct findings about the objective seriousness of the offending.

The applicant pleaded guilty to a range of offences including, relevantly, an offence of aggravated steal from person (using corporal violence). That offence is in s 95 of the Crimes Act 1900, which is the same offence provision as aggravated robbery. Because the offence was in a similar category to aggravated robbery, the guideline judgment for sentencing in aggravated robbery matters (R v Henry (1999) 46 NSWLR 346 – ‘Henry’) was relevant on sentence.

As part of his sentencing remarks, the sentencing judge noted, by way of distinction from the Henry guideline, that whereas Henry assumed a young offender with little or no criminal history, the applicant had a lengthy criminal history and was ‘not … especially young’ (he was 29 years old). For the overall course of offending, the offender received a sentence of 3 years, 6 months, with a non-parole period of 2 years, 5 months. He appealed on grounds including that the sentencing judge erred by taking into account subjective factors – namely the age and criminal antecedents of the applicant – when assessing the objective seriousness of the aggravated steal from person offence. This summary deals only with the ground touching on the Henry guideline.

The Court (Coleman J; N Adams and Sweeney JJ agreeing, each with some additional remarks relevant to other grounds of appeal) observed that his Honour was not given much assistance on this issue, with the Crown having made submissions to the effect that it was appropriate to take into account the features of the Henry guideline in assessing the objective seriousness of the offence, and the offender’s representatives not taking issue with that approach (at [62]-[64]).

Some features from the Henry guideline may, if present, be relevant to assessment of the objective seriousness of the offence. Of course, they may not be the only factors relevant to assessment of the objective seriousness of the offending (at [65]).

However, whilst some of the factors from the Henry guideline may, if present, be relevant to the assessment of the objective seriousness of the offending, it is those factors and not the sentencing guideline which are relevant to that issue. The sentencing guideline in Henry is a matter to be taken into account as a check or sounding board by a sentencing judge in cases where the offence under consideration falls within its purview. Where it applies, the guideline is a factor to be considered, along with the other statutory and common law factors, as part of the instinctive synthesis of sentencing in making a value judgment expressed in the numerical term of the sentence to be imposed (at [66]).

In this case, the judge only referred to the Henry guideline in the part of his remarks dealing with the objective seriousness of the aggravated steal from person offence. This included making reference to the subjective factors of the applicant’s age and criminal history. Reading the remarks as a whole, his Honour erred in taking those subjective factors into account in reaching his assessment of the objective seriousness of the aggravated steal from person offence. This was an error.

Despite the error, in considering a potential resentence a majority of the CCA (Coleman and N Adams JJ) would have imposed a slightly higher sentence, and Sweeney J would have imposed a sentence which was not lower; it followed that the appeal was dismissed.

As a practical matter, this judgment suggests that practitioners should carefully separate out the various ‘features of the typical case’ from the Henry guideline into separate submissions about subjective and objective factors relevant to sentence.