Citation: [1999] NSWCCA 423
Court: New South Wales Court of Criminal Appeal
Date: 27 October 1999
Judge(s): Simpson J; Smart AJ
Background
The applicant pleaded guilty in the District Court to a single charge of aggravated break, enter and steal under section 112(2) of the Crimes Act 1900, which carries a maximum penalty of twenty years penal servitude. The offence involved the applicant and his de facto partner entering a residential premises after the applicant smashed a bedroom window. Police were notified and arrived while the pair were still inside; no property was removed, but significant damage was caused by blood shed from the applicant's injured hand, estimated at around $3,000.
Nield DCJ sentenced the applicant to a total term of six years penal servitude, divided into a minimum term of four and a half years and an additional term of one and a half years. His Honour declined to find special circumstances under section 5(3) of the Sentencing Act 1989, which would have permitted a departure from the standard one-third to two-thirds division of the sentence. The applicant's de facto partner and co-offender was sentenced to a total term of four years, with special circumstances found in her case, producing a minimum term of two years.
The applicant sought leave to appeal on three grounds: that the sentence was excessive in comparison to the sentence imposed on his co-offender (the parity principle), that the total term was itself manifestly excessive, and that his Honour erred in refusing to find special circumstances.
Legal Issues
- Whether the disparity between the applicant's sentence and that of his co-offender constituted an error by the sentencing judge
- Whether the total term of six years for a single aggravated break, enter and steal offence was outside the permissible range of sentencing discretion
- Whether his Honour erred in declining to find special circumstances, particularly given the applicant's Aboriginal background, traumatic personal history, and rehabilitation needs
Decision
On the parity ground, the Court of Criminal Appeal found that the sentencing judge had likely exceeded his discretion in imposing sentences with such a wide differential. The comparison was not simply between the total terms (six years versus four years) but between the minimum terms actually served: four and a half years for the applicant against two years for his co-offender. The Court noted that his Honour's decision to find special circumstances in the co-offender's case but not the applicant's had the effect of more than doubling the applicant's minimum term relative to hers. While the applicant's significantly more extensive criminal history and greater role in the offence justified some differential, the Court concluded the resulting gap was disproportionate.
On the question of the total term, the Court acknowledged the applicant's very lengthy criminal history, including nine prior break and enter offences, and the objective circumstances of the offending. However, taking into account all relevant factors, including the subjective matters arising from the applicant's background, the Court concluded the six-year total term also fell outside the outer limits of a proper sentencing discretion.
The Court of Criminal Appeal also found clear error in the refusal to find special circumstances. The applicant is of Aboriginal descent and his background carried many of the features described in R v Fernando, including childhood institutionalisation, parental alcohol abuse, the deaths of three siblings, long-term heroin dependency commencing in his early teenage years, and the stillbirth of a child shortly before the offence. His Honour had stated there was "no circumstance whatsoever" warranting a departure from the standard division, a conclusion the Court found unsupportable given the pre-sentence report and other material before him. The Court held that the applicant's circumstances called for a finding of special circumstances so that, on release, he would have a lengthy period of supervised liberty to assist his rehabilitation.
Orders Made
- Leave to appeal granted
- Appeal allowed and sentence varied
- The applicant sentenced to a total term of penal servitude of five years, comprising a minimum term of two and a half years commencing 21 February 1998 and expiring 20 August 2000, and an additional term of two and a half years commencing 21 August 2000 and expiring 20 February 2003
Key Takeaways
- The Court of Criminal Appeal confirmed that parity analysis must look beyond total terms to minimum terms actually served, particularly where one co-offender has had special circumstances found and the other has not.
- A co-offender's more extensive criminal record and greater role in the offence may justify a higher sentence, but the resulting differential must still bear a proper relationship to the sentences imposed overall.
- Under section 5(3) of the Sentencing Act 1989, a sentencing court's refusal to find special circumstances constitutes error where the offender's background and rehabilitation needs plainly call for a lengthier period of supervised liberty on release.
- Where an offender of Aboriginal descent has a background consistent with the principles in R v Fernando (including childhood trauma, substance dependency, and systemic disadvantage), that material is relevant to both the exercise of sentencing discretion and the question of special circumstances.
- In dismissing a finding of "no circumstance whatsoever" warranting special circumstances, the Court indicated that an evidential basis in pre-sentence reports and correspondence about rehabilitation needs is sufficient to require at least consideration of a departure from the standard minimum-to-additional term division.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 112(2) (aggravated break, enter and steal)
- Sentencing Act 1989 (NSW), s 5(3) (special circumstances and division of sentence into minimum and additional terms)
Cases
- R v Fernando (1992) 76 A Crim R 58 (principles relevant to sentencing offenders of Aboriginal descent)