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Court of Criminal Appeal 14 September 2001

R v Barakat

[2001] NSWCCA 366

Theft & property
SENTENCING APPEAL AGAINST SEVERITY BREAK, ENTER AND STEAL REDUCED NON APPEAL DISMISSED.

Citation: Barakat v R [2001] NSWCCA 366
Court: NSW Court of Criminal Appeal
Date: 14 September 2001
Judge(s): Sully J; Carruthers AJ

Background

The applicant, a Lebanese-born Australian citizen with an extensive criminal history, pleaded guilty in the Sydney District Court to four counts of break, enter and steal under s 112(1) of the Crimes Act 1900. The offences occurred across four consecutive days in October 1999 and involved forced entry into private homes, with stolen property never recovered.

At the time of sentencing, the applicant was already in custody serving the balance of a parole revocation from earlier break, enter and steal convictions. The sentencing judge, Davidson DCJ, structured the sentences carefully so that the non-parole periods aligned with the expiry of that earlier parole order, producing an overall non-parole period of approximately 13 months and two weeks for the four new offences.

The applicant sought leave to appeal on the ground that the sentence was excessive, arguing that the sentencing judge failed to adequately recognise special circumstances and did not give sufficient weight to subjective factors, including his guilty plea.

  • Whether Davidson DCJ erred by failing to find special circumstances, given the accumulation of sentences significantly compressed the parole period relative to total time in custody.
  • Whether the applicant received a sufficient discount for his pleas of guilty.
  • Whether the overall sentence was disproportionate to the applicant's subjective circumstances.

Decision

Carruthers AJ, with Sully J agreeing, found that the sentencing judge had deliberately and carefully structured the sentences to accommodate the applicant's specific circumstances, most notably his expressed desire to return to Lebanon following release. The reduced non-parole period was not an oversight but a deliberate feature of the sentencing regime.

While acknowledging that an accumulation of sentences can constitute special circumstances warranting a longer parole period, the Court found this was a different situation. Here, reducing the non-parole period further to accommodate the applicant's arguments would produce a result wholly disproportionate to the seriousness of the offending, particularly given the persistent and serious nature of break, enter and steal from private homes.

The Court observed that s 6(3) of the Criminal Appeal Act 1912 required it to substitute a different sentence only where a more or less severe sentence was warranted in law. In the circumstances, the Court could not conclude that a less severe sentence was warranted. Granting the appeal would, in the Court's view, amount to a miscarriage of justice. The Crown's interest, representing the public interest in appropriate punishment for serious offences, had to be respected alongside the applicant's submissions.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • An accumulation of sentences can constitute special circumstances, but this principle does not operate mechanically to reduce a non-parole period where doing so would render the sentence disproportionate to the level of criminality involved.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that s 6(3) of the Criminal Appeal Act 1912 limits intervention to cases where a different sentence is actually warranted in law, not merely argued to be preferable.
  • A sentencing judge may legitimately structure sentences to reflect a particular subjective factor, such as an offender's wish to be free to return to a home country, provided the resulting sentence is not disproportionate to the offending.
  • The public interest in condign punishment for break, enter and steal offences targeting private homes is a significant consideration in severity appeals before the Court of Criminal Appeal.
  • No error was established in the sentencing judge's approach where the sentence, though specifically structured, fell within the range that reflected the seriousness of the offences and the applicant's circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1) (break, enter and steal; maximum penalty 14 years imprisonment)
- Criminal Appeal Act 1912 (NSW), s 6(3) (power to substitute sentence on appeal)

Cases: No specific cases were cited by name in the judgment text.