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Court of Criminal Appeal 27 June 2001

Regina v Andreassen

[2001] NSWCCA 246

Theft & property
CRIMINAL LAW SENTENCE GUILTY PLEA NO MATTER OF PRINCIPLE

Citation: Regina v Andreassen [2001] NSWCCA 246
Court: Court of Criminal Appeal, New South Wales
Date: 27 June 2001
Judge(s): Howie J; Barr J

Background

The applicant, a 33-year-old man with an extensive criminal history dating back to 1978, pleaded guilty in the District Court to two counts of break, enter and steal arising from a single night's offending at a caravan park in January 2000. He was seen carrying a television set and attempting to remove a bicycle lock. Police also found a caravan stove he had taken from a second dwelling on the property.

The sentencing judge, Kinchington QC DCJ, acknowledged the offences were not of the most serious kind and could have been dealt with in the Local Court. The matter was committed to the District Court because of the applicant's lengthy record of dishonesty offences. Aggravating features included the applicant being on bail at the time and subject to a good behaviour bond.

The applicant was sentenced to three years and nine months imprisonment with a non-parole period of 21 months, commencing 30 January 2000. He appeared before the Court of Criminal Appeal in person, seeking leave to appeal the sentence.

  • Whether the sentencing judge gave adequate recognition to the applicant's early guilty plea, consistent with the utilitarian discount recognised in R v Thompson and Houlton
  • Whether the absence of a psychiatric or psychological assessment before sentencing occasioned a miscarriage of justice
  • Whether the sentencing judge erred by treating the applicant as institutionalised, or had otherwise pre-judged him
  • Whether the total sentence and non-parole period were manifestly excessive

Decision

On the guilty plea ground, the Court acknowledged the sentencing judge had mentioned the plea but said nothing further about the weight given to it. Applying the 25 per cent utilitarian discount recognised in R v Thompson and Houlton, the Court worked backwards from the total sentence of three years and nine months to an implied starting point of five years. The Court found that starting point was not excessive given the applicant's aggravating circumstances, and declined to intervene on this basis.

Regarding the absence of a psychiatric assessment, the Court accepted that delays in the prison system had contributed to the omission. However, the applicant had been represented by experienced counsel, who had made a deliberate decision not to pursue an assessment before sentence. The sentencing judge was aware of the potential psychiatric issue and took it into account as a special circumstance, reducing the non-parole period below what he might otherwise have imposed. No miscarriage of justice was established.

The Court rejected the applicant's complaint that the sentencing judge had pre-judged him by describing him as institutionalised. The remarks were understood as the judge urging the applicant to make productive use of his extended parole period, not as a finding that unfairly inflated the sentence. The Court also found no error in the judge's broader sentencing approach.

On manifest excess, the Court found the total sentence sat at the very top of the appropriate range but was not outside it, given that both offences arose from the same course of conduct and the applicant was on bail at the time. The non-parole period of 21 months was described as lenient in the circumstances. The Court concluded the sentence was not manifestly excessive and saw no occasion to resentence the applicant.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Applying the 25 per cent utilitarian guilty plea discount recognised in R v Thompson and Houlton, the Court of Criminal Appeal worked backwards from the sentence imposed to assess whether the implied starting point was defensible, rather than treating the absence of explicit reasons on the discount as automatically fatal to the sentence.
  • A failure to obtain a psychiatric assessment before sentencing does not necessarily constitute a miscarriage of justice where the defendant was represented by experienced counsel who chose not to pursue one, and where the sentencing judge was aware of the issue and responded to it in structuring the sentence.
  • Remarks by a sentencing judge about the risk of institutionalisation are properly understood as encouragement directed to the offender rather than as a punitive pre-judgment, where the context supports that reading.
  • Being on bail at the time of offending remained a material aggravating factor capable of supporting a sentence at the top of the available range, even where the underlying offences were not of the most serious kind.
  • No error was established on any ground, confirming that the Court of Criminal Appeal will not intervene in a sentence merely because a different judge might have structured it differently, provided the outcome falls within the permissible range.

Legislation and Cases Referenced

Cases:
- R v Thompson and Houlton (2000) 49 NSWLR 383 (utilitarian discount for guilty plea)

Legislation:
- No specific legislation was cited in the judgment text. The maximum penalty for break, enter and steal (14 years) was noted as the applicable maximum.