Citation: Regina v Phillip John Scott [1999] NSWCCA 434
Court: NSW Court of Criminal Appeal
Date: 16 December 1999
Judge(s): Spigelman CJ, Grove J, Sully J (Sully J delivered the principal judgment; Spigelman CJ and Grove J agreed)
Background
The applicant was sentenced in the District Court at Gosford by McGuire DCJ on 16 April 1998 in relation to three separate offences of breaking, entering and stealing, committed between February 1996 and mid-1997 on the Central Coast of New South Wales. The stolen property across the offences included power tools, electrical equipment, jewellery, alcohol, clothing, a bicycle, and cash.
Two of the three offences were committed while the applicant was at liberty on bail. The second offence was committed within approximately one hour of being granted bail following his arrest for the first offence. The third offence was committed after the applicant had absconded from a rehabilitation centre where he was required to reside as a condition of bail granted by a Supreme Court judge. The applicant was found guilty by jury on two matters and pleaded guilty to one.
The aggregate sentence was penal servitude for five years and nine months, structured as a minimum term of three years and nine months and an additional term of two years. The applicant did not challenge the aggregate sentence before the Court of Criminal Appeal, but argued that the minimum term was too long.
Legal Issues
- Whether the minimum term of three years and nine months was manifestly excessive in the circumstances.
- Whether the sentencing judge gave insufficient weight to factors of mercy in fixing the minimum term.
- Whether the sentencing judge gave insufficient weight to rehabilitation prospects when setting the minimum term.
Decision
The Court of Criminal Appeal unanimously dismissed the appeal. Sully J, with whom Spigelman CJ and Grove J agreed, found that no error had been demonstrated in the sentencing judge's approach.
On the question of mercy, the sentencing judge had taken the view that the applicant had repeatedly been shown leniency by the courts and had squandered each opportunity. Sully J accepted that this was an austere approach but held it was not wrong in law, describing the sentencing judge as "entirely justified in taking a severe view."
On rehabilitation, Sully J found that the sentencing judge had not disregarded the evidence on that topic. Critically, the finding of "special circumstances" under section 5(2) of the Sentencing Act 1989 (NSW) itself reflected attention to rehabilitation. That finding had produced a minimum term shorter than the standard statutory ratio and a correspondingly extended additional term, which acknowledged the benefit to the applicant of a longer supervised period on release.
The Court also noted that the hearing took place alongside the Attorney-General's application that resulted in a guideline judgment for offences under section 112(1) of the Crimes Act 1900 (NSW). Sully J observed that the newly issued guidelines strengthened, rather than undermined, the appropriateness of the sentence imposed below.
Orders Made
- Leave granted to appeal against the sentences imposed on the applicant.
- Appeal against sentences dismissed in respect of each sentence.
Key Takeaways
- No error was established in the sentencing judge's approach to mercy where the record showed the applicant had repeatedly been granted leniency and had failed to take advantage of it.
- A finding of "special circumstances" under section 5(2) of the Sentencing Act 1989 (NSW) is itself evidence that a sentencing judge has turned attention to rehabilitation, because it produces a longer additional (supervised) term at the expense of the minimum term.
- Committing further offences within hours of being granted bail, and again after absconding from a court-ordered rehabilitation programme, are aggravating factors that a sentencing court is entitled to weigh heavily.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate sentence accepted as correct does not automatically render the minimum term vulnerable to challenge simply because mercy or rehabilitation arguments exist.
- The concurrent publication of a guideline judgment on section 112(1) Crimes Act offences was treated as relevant context; the Court of Criminal Appeal noted the guidelines were consistent with, and supportive of, the sentence imposed at first instance.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(1) (breaking, entering and stealing)
- Sentencing Act 1989 (NSW), s 5(2) (special circumstances and adjustment of minimum and additional terms)
Cases:
- No specific cases were cited in the judgment text provided. The decision was heard alongside the Attorney-General's guideline judgment application concerning section 112(1) offences, though that judgment is a separate matter.