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Court of Criminal Appeal 28 May 1999

R v HILL

[1999] NSWCCA 140

Theft & property
CRIMINAL LAW SENTENCING

Citation: R v Hill [1999] NSWCCA 140
Court: NSW Court of Criminal Appeal
Date: 28 May 1999
Judge(s): Barr J; McInerney AJ

Background

The appellant was a young man aged eighteen years and seven months at the time of the offences. Between September 1997 and January 1998, he committed ten counts of breaking, entering and stealing at unoccupied dwelling houses in the Blue Mountains, together with one count of receiving stolen goods. The offences were planned, carried out in company, and netted approximately $30,000 in stolen property.

The appellant had a prior record, including vehicle theft and break-ins to motor vehicles in 1996, and was subject to a recognisance at the time of all the offences before the court. Despite this, by the time of sentencing he had ceased drinking alcohol, secured employment, enrolled in a technical college course, and been informally taken in by a stable family.

In the District Court, Judge Nield imposed ten concurrent five-year terms of penal servitude on the breaking, entering and stealing counts, with a concurrent two-year fixed term for the receiving count, resulting in an effective sentence of five years with a minimum term of two and a half years.

  • Whether the total sentence of five years was manifestly excessive, having regard to sentencing statistics for comparable offences
  • Whether the sentencing judge gave sufficient weight to the appellant's youth and the principles favouring rehabilitation of young offenders
  • Whether the sentencing judge gave sufficient weight to the appellant's voluntary attendance at a police station and confession to the offences

Decision

The Court of Criminal Appeal found that the five-year sentence sat too close to the upper limit of the relevant statistical range, particularly when the appellant's age and demonstrated rehabilitation were considered together. Barr J noted that while the combined seriousness of the offences required a substantial sentence, the quite remarkable evidence that the appellant had already begun rehabilitation before sentencing needed to be given very great weight.

On the rehabilitation point, the Court observed that alcohol had dominated the appellant's life at the time of the offences, but that by sentencing he had completely forsworn alcohol, was working, and was studying. The Court also accepted that evidence placed before it showed the appellant had continued to perform well in custody, including completing drug and alcohol counselling courses. These circumstances, combined with his age, were treated as special circumstances justifying an additional term exceeding one-third of the minimum term, to allow for supervised parole support upon release.

On the voluntary confession ground, Barr J accepted that some weight was warranted, noting that police may not have been able to prove the appellant's involvement in all ten offences, and he had disclosed two offences for which police had no other evidence. However, this factor carried relatively limited weight in the overall result, given the uncertainty about what the police could have proved independently, particularly given the co-offender's arrest.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Ten sentences on the breaking, entering and stealing offences quashed
  • In lieu, the appellant sentenced to ten concurrent terms of four years' penal servitude each, commencing 11 August 1998, comprising a minimum term of two years and an additional term of two years
  • Appellant eligible for release on parole on 10 August 2000
  • The sentence on the receiving count was not disturbed (it remained a concurrent fixed term)

Key Takeaways

  • Where a young adult offender demonstrates genuine and well-evidenced rehabilitation before sentencing, a sentencing court must give that factor very great weight, particularly when combined with the offender's youth.
  • A sentence that falls close to the upper statistical range for comparable offences can be found manifestly excessive where insufficient weight was given to youth and rehabilitation, even where the offences were serious and the offender had a prior record.
  • The Court of Criminal Appeal confirmed that the primary aim in sentencing young offenders is the promotion of rehabilitation, drawing on established authority, though the court noted that an eighteen-year-old is not entitled to the same degree of latitude as a child or young person.
  • Continued good behaviour and engagement with rehabilitation programs in custody can support a finding of special circumstances, justifying a longer additional term (supervised parole period) relative to the minimum term.
  • Voluntary confession to police, resulting in charges being laid that might not otherwise have proceeded, is a mitigating factor, though its weight depends on the specifics of each case and remains subject to uncertainty about what could otherwise have been proved.

Legislation and Cases Referenced

Cases cited:
- R v GDP (1991) 53 A Crim R 112
- R v Smith [1964] Crim LR 70

Legislation: No specific legislation was cited in the text of the judgment.