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Court of Criminal Appeal 2 August 1999

Regina v Basilious

[1999] NSWCCA 219

Assault & violenceTheft & property
CRIMINAL LAW ON PROBATION AND ON BAIL

Citation: Regina v Basilious [1999] NSWCCA 219
Court: NSW Court of Criminal Appeal
Date: 2 August 1999
Judge(s): Levine J; Smart AJ

Background

The appellant, a young man born in April 1978, sought leave to appeal against sentences imposed in the District Court for three offences: stealing from the person, robbery, and break, enter and steal. The total sentence comprised a minimum term of 12 months and an additional term of 18 months.

The first two offences, committed in late November and early December 1996, involved the appellant using his physical size and aggression to take a mobile phone from an acquaintance, and then grappling with a 16-year-old victim at a railway station to steal property. Both offences were committed while the appellant was subject to two separate probation orders. He was then arrested, released on conditional bail, and in March 1997 broke into a residence at Chatswood and stole compact discs, committing that offence while on bail.

At the sentencing hearing, the appellant argued that the offences were partly explained by injuries suffered in a 1994 motor vehicle accident, which he said had affected his behaviour. He also pointed to significant positive changes since the offences, including stable employment and the effect of medication. The sentencing judge accepted those subjective matters but concluded that the objective gravity of the offences, combined with the circumstances of offending while on probation and on bail, required a custodial sentence.

  • Whether the total sentence of a 12-month minimum term and 18-month additional term was manifestly excessive in the circumstances
  • Whether fresh medical evidence, unavailable at the sentencing hearing, was capable of undermining the basis on which the District Court had proceeded, and if so whether it warranted intervention by the Court of Criminal Appeal
  • Whether the sentencing judge had erred in finding that the appellant's mental condition was not significantly attributable to head injuries sustained in the motor vehicle accident

Decision

The Court granted leave to appeal but dismissed the appeal. Smart AJ, with Levine J agreeing, found no error of principle or fact in the approach taken by Howie DCJ at sentencing. The District Court judge had given the matter careful and sympathetic consideration, and had described the sentences imposed as the minimum permissible having regard to the seriousness of the offences and the aggravating circumstances of offending while on probation and on bail.

The appellant sought to tender two further medical reports at the appeal hearing: a report from Dr Girgis dated 2 March 1999, and a report from Royal North Shore Hospital dated 4 February 1999. The hospital report recorded prominent cortical changes of "undetermined cause." Dr Girgis expressed the view that the appellant's anti-social behaviour was definitively attributable to his head injury. The Court admitted this fresh material to avoid any suggestion of a miscarriage of justice, given that it was arguably capable of affecting the basis on which the sentencing judge proceeded.

However, the Court found that even with this additional evidence, the position remained far from clear. The cause of the observed changes was undetermined on the hospital's own findings, and it was difficult to accept that the accident injuries had caused or materially contributed to the commission of the offences. The Court noted that drug use and the need to fund that habit were at least equally plausible explanations.

The Court concluded that the objective gravity of the offences warranted the sentences imposed, and the strong subjective features in the appellant's favour did not justify appellate intervention. The sentences were described as lenient given the circumstances.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Offending while on probation and on bail are significant aggravating factors that can require a custodial sentence even where strong subjective features, including youth, employment, and personal rehabilitation, are present.
  • Fresh medical evidence on appeal will be admitted where it is arguably capable of affecting the factual basis on which a sentencing court proceeded, in order to avoid any suggestion of a miscarriage of justice.
  • Admission of fresh evidence does not automatically lead to intervention: where that evidence leaves the relevant question (here, the cause of the appellant's behavioural changes) unresolved, it may not be sufficient to displace the sentencing court's findings.
  • No error of principle or fact was established in a sentence that the District Court itself described as the minimum permissible, where the objective gravity of multiple offences against vulnerable victims was high.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that lenient sentences at first instance may still be correct in law, and that appellate courts will not substitute their own view of an appropriate sentence merely because subjective factors are compelling.

Legislation and Cases Referenced

Legislation: None cited in the judgment or metadata.

Cases: None cited in the judgment or metadata.