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Court of Criminal Appeal 18 February 2000

Regina v Campbell

[2000] NSWCCA 429

Also reported as [2000] 115 A Crim R 300
Theft & property
CRIMINAL LAW SENTENCE APPEAL YOUNG ABORIGINAL MALE EFFECTIVE SENTENCE OF 5 YEARS OVERALL MINIMUM TERM 3 YEARS ADDITRIONAL TERM 2 YEARS

Citation: Regina v Campbell [2000] NSWCCA 429
Court: NSW Court of Criminal Appeal
Date: 18 February 2000
Judge(s): Sully J, Carruthers AJ, Foster AJ

Background

The applicant, a 24-year-old Aboriginal man, pleaded guilty in the Dubbo District Court to eight offences: two counts of break and enter with intent, three counts of break, enter and steal, one count of allowing himself to be carried in a stolen conveyance, one count of receiving stolen goods, and one count of possessing housebreaking implements. The offences were committed in early 1998, shortly after his release on parole from an earlier sentence.

The applicant's background was marked by significant disadvantage. He grew up in the Redfern-Waterloo area, left school at 15 with little formal education, and had never been in paid employment. His father, an alcoholic, died in 1991. He developed alcohol and drug dependencies from a young age, including heroin and cocaine use, partly in connection with a partner who was also a user.

Judge Armitage of the Dubbo District Court sentenced the applicant to an effective overall term of five years, comprising a minimum term of three years and an additional term of two years. His Honour found special circumstances, resulting in a longer-than-usual additional term. The applicant sought leave to appeal against the sentences.

  • Whether the sentencing judge erred by failing to give adequate weight to the maximum penalties applicable to comparable offences in the District Court.
  • Whether the sentencing judge gave insufficient weight to the applicant's Aboriginality and the disadvantage flowing from it, as required by the principles set out in R v Fernando.
  • Whether the overall effective sentence of five years fell outside the available sentencing discretion in light of the applicant's subjective circumstances.

Decision

The Court of Criminal Appeal, in a judgment delivered by Carruthers AJ (with Sully J and Foster AJ agreeing), dismissed the appeal on all grounds. Leave to appeal was granted, but the appeal itself failed.

On the question of maximum penalties for District Court offences, the Court rejected the submission that the sentencing judge had failed to have proper regard to those limits. The Court considered the applicable principles from the Attorney-General's Application No. 1 and Pearce v The Queen, but found no relevant error in the approach taken below.

On the Fernando principles, the Court carefully re-examined R v Fernando, which requires sentencing courts to take into account the particular social and cultural circumstances of Aboriginal offenders. Carruthers AJ concluded that the sentencing judge had not conflated irrelevant considerations with the Fernando analysis, and that the sentence imposed did not conflict with or misunderstand those principles. The extended additional term was seen as accommodating the psychologist's recommendation for therapeutic supervision after release.

The Court acknowledged what it described as "a well known syndrome" of disadvantage affecting young Aboriginal men, encompassing lack of opportunity, dysfunctional family backgrounds, substance abuse, unemployment and offending. Nonetheless, it found the sentences imposed were well within the discretionary range available to the sentencing judge and upheld them in full.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an effective sentence of five years for multiple break, enter and steal offences committed shortly after parole was within the available sentencing discretion, notwithstanding the offender's significant personal disadvantage.
  • The principles in R v Fernando require a sentencing court to consider the particular circumstances of Aboriginal offenders, including social deprivation and substance abuse, but those principles do not mandate a reduction in sentence in every case involving an Aboriginal offender.
  • Where a sentencing judge imposes an extended additional term to enable post-release supervision and rehabilitation, that structure may itself reflect appropriate accommodation of a psychologist's recommendations regarding the offender's needs.
  • No error arose merely because an effective sentence approached or reflected the upper range available to the sentencing court; the question remained whether the sentence fell within the proper discretionary range.
  • Acknowledgment of systemic disadvantage facing young Aboriginal men does not, of itself, compel a finding that a sentence is manifestly excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112, 113(1), 114(1)(b), 118, 154A

Cases:
- R v Fernando (1999) 76 A Crim R 58
- Pearce v The Queen [1999] 72 ALJR 1416
- In the Matter of the Attorney General's Application No. 1 under s 26 of the Criminal Appeal Act, NSWCCA, 16 December 1999