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Court of Criminal Appeal 6 October 2000

R v Peter Bourke

[2000] NSWCCA 414

Assault & violenceTheft & propertyDomestic & family violence
CRIMINAL LAW SENTENCE DOMESTIC VIOLENCE WHETHER MANIFESTLY EXCESSIVE NO QUESTION OF PRINCIPLE

Citation: Peter Bourke v R [2000] NSWCCA 414
Court: NSW Court of Criminal Appeal
Date: 6 October 2000
Judge(s): Hidden J; Simpson J

Background

The applicant, a 27-year-old Aboriginal man, pleaded guilty in the District Court to four offences arising from a violent episode on the night of 27 February 1998 in Young, NSW. After drinking heavily, he forced his way into his brother's home, threatened his sister-in-law with a knife, and held his brother hostage at knifepoint. He then broke into the home of his former partner's father, where he stabbed the father multiple times and struck his former partner with the knife, causing significant injuries to both victims.

Christie DCJ sentenced the applicant to twelve years' penal servitude (minimum nine years, additional three years) on the most serious count, being breaking and entering a dwelling house and committing malicious wounding in circumstances of special aggravation under s 112(3) of the Crimes Act 1900. Fixed terms of four, five and two years ran concurrently on the remaining counts. The sentencing judge indicated that, absent the guilty pleas, a sentence of fifteen to sixteen years would have been imposed.

The applicant sought leave to appeal, arguing the effective sentence was manifestly excessive and that the sentencing judge should have found special circumstances justifying a greater ratio of additional term to minimum term.

  • Whether the overall sentence of twelve years on the principal count was manifestly excessive in light of the sentencing judge's stated starting point of fifteen to sixteen years
  • Whether the sentencing judge erred in failing to find special circumstances warranting a departure from the usual proportion between minimum and additional terms
  • Whether the sentencing judge was entitled to apply the principles from R v Fernando regarding the sentencing of Aboriginal offenders, notwithstanding a relatively limited evidentiary foundation

Decision

Hidden J accepted that the offences were very serious and plainly called for sentences with a marked degree of deterrence. His Honour also accepted that the sentencing judge's approach was otherwise beyond criticism, including the weight given to the guilty pleas (consistent with the utilitarian discount principles affirmed in R v Thomson & Houlton) and the consideration of the applicant's deprived background, alcohol dependency, and Aboriginal heritage.

The error identified by Hidden J lay in the sentencing judge's starting point of fifteen to sixteen years before applying the discount for guilty pleas. His Honour found that starting point to be too high, noting it was a figure not uncommonly seen in murder cases. Because the sentence was fashioned around that excessive starting point, intervention by the Court of Criminal Appeal was warranted.

On the Fernando principles, Hidden J accepted that the sentencing judge was entitled to apply those special considerations to the applicant, even though the evidence before the District Court was less detailed than in Fernando itself. The applicant's background, including a father who was alcoholic and violent, early departure from school, persistent alcohol problems, and interspersed periods of custody, was not inconsistent with the circumstances commonly considered under that line of authority.

The Court also found special circumstances existed, justifying a departure from the usual proportion between head sentence and non-parole period, given the applicant's relative youth and some prospects of rehabilitation.

Orders Made

  • Leave to appeal granted
  • Sentence on count one (breaking and entering in circumstances of special aggravation) quashed
  • In lieu, the applicant sentenced on count one to imprisonment for ten years, dating from 28 February 1998, with a non-parole period of six years
  • Sentences on counts two, three and four confirmed

Key Takeaways

  • A sentencing court's identification of an excessive starting point, prior to applying a discount for guilty pleas, can itself constitute appealable error even where every other aspect of the sentencing process is unimpeachable.
  • The Court of Criminal Appeal confirmed that a pre-discount starting point of fifteen to sixteen years was too high for offences of breaking and entering with malicious wounding in circumstances of special aggravation, noting such figures more commonly appear in murder sentencing.
  • Under the principles in R v Fernando, a sentencing court may take into account the special circumstances of Aboriginal offenders even where the evidentiary material is relatively brief, provided the background disclosed is not inconsistent with the circumstances those principles address.
  • Special circumstances justifying a greater additional term were found to exist where the applicant was relatively young and there were identified prospects of rehabilitation, even in the absence of formal evidence called on the applicant's behalf.
  • The utilitarian discount for guilty pleas entered at the earliest reasonable opportunity remained a significant factor, consistent with the approach affirmed by the Court of Criminal Appeal in R v Thomson & Houlton.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35, 112(2), 112(3)

Cases
- R v Thomson; R v Houlton [2000] NSWCCA 309
- R v Fernando (1992) 76 A Crim R 58