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10
Court of Criminal Appeal 14 May 2001

R v Pitt

[2001] NSWCCA 156

Public order & justice offences
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE MALICIOUS DAMAGE BY FIRE MALICIOUS DAMAGE WHETHER SENTENCE OUTSIDE RANGE

Citation: Pitt v R [2001] NSWCCA 156
Court: New South Wales Court of Criminal Appeal
Date: 14 May 2001
Judge(s): Wood CJ at CL; Sully J

Background

The applicant pleaded guilty in the District Court to malicious damage by fire and malicious damage, arising from events on New Year's Eve 1999. In a state of alcohol and drug-affected jealousy, he returned to the Department of Housing property where he lived with his de facto partner, smashed household items, and set fire to a curtain. The fire caused approximately $19,000 in damage and was only extinguished by the local Fire Brigade.

Judge Bell of the District Court sentenced the applicant to six years imprisonment for the arson offence (maximum: ten years), with a non-parole period of three and a half years, and a concurrent fixed term of two years for the property damage offence. The sentences ran from 1 January 2000, when the applicant was taken into custody.

The applicant sought leave to appeal, arguing that the sentencing judge had not given sufficient weight to his personal background (including his Aboriginal heritage), had not adequately discounted for the guilty plea, and had imposed a sentence that was outside the appropriate range and manifestly excessive.

  • Whether the sentencing judge gave insufficient weight to the applicant's personal background, including his Aboriginal heritage and history of disadvantage
  • Whether the sentencing judge gave insufficient weight to the guilty plea as a mitigating factor
  • Whether the sentence was outside the appropriate range or manifestly excessive

Decision

Background and Aboriginal heritage: The Court of Criminal Appeal confirmed that the applicant's background had been considered, but found nothing of an exceptional nature that required particular mitigation. Importantly, the Court applied the principles in Ceissman and Powell to reject the suggestion that Fernando authorises special leniency solely on the basis of an offender's Aboriginality. Aboriginal heritage is not, of itself, a mitigating circumstance, and reading Fernando that way is an error.

Guilty plea: The sentencing judge had expressly stated that he applied a discount for the guilty plea, as required by section 22 of the Crimes (Sentencing Procedure) Act 1999. While the plea was timely and carried utilitarian value, the Court noted that the charges were essentially unanswerable. The discount given was consistent with the approach confirmed in Thomson and Houlton.

Range and totality: Considered in isolation, the Court accepted that the sentence may have sat at the outer edge of the appropriate range, given the circumstances of the offence, the guilty plea, and the applicant's contrition. However, by the time of the appeal, it had emerged that the applicant was on bail for other serious offences when he committed the arson and damage offences, and that he had since been sentenced to a further concurrent term for those outstanding matters. Taking into account the principle of totality and the full picture of the applicant's criminality, the Court concluded that reducing Bell DCJ's sentence would produce a manifestly inadequate outcome. No intervention was warranted.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that Fernando does not stand for the proposition that Aboriginal heritage is, in itself, a mitigating factor at sentencing; its proper application requires something exceptional in the offender's background that connects to the offending.
  • A guilty plea carries utilitarian value and must be discounted under section 22 of the Crimes (Sentencing Procedure) Act 1999, but the strength of the prosecution case is relevant to the weight that discount attracts.
  • Committing offences while on bail for other serious matters is a significant aggravating factor in sentencing, particularly where the offender already has a substantial criminal history.
  • In applying the totality principle, the combined effect of all concurrent sentences must be examined; a sentence that appears excessive in isolation may be justified once the full picture of the offender's criminality is considered.
  • No error was established in Bell DCJ's exercise of sentencing discretion once the Court of Criminal Appeal assessed the sentences in their full context.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 195(a) and 195(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 22

Cases:
- R v Ceissman [2001] NSWCCA 73
- R v Powell [2000] NSWCCA 108
- R v Fernando (1992) 76 A Crim R 58
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Richards (1981) 2 NSWLR 464