Citation: Hellyer v R [2001] NSWCCA 384
Court: NSW Court of Criminal Appeal
Date: 10 August 2001
Judge(s): Dowd J; Smart AJ
Background
The applicant pleaded guilty in the Campbelltown District Court to two charges of aggravated break and enter with intent under s 112(2) of the Crimes Act 1900, each carrying a maximum penalty of 20 years imprisonment. The offences occurred within five days of each other in March 2000 and both involved home invasions targeting elderly, vulnerable victims.
The first offence involved entering the home of a 71-year-old widow living alone, tying and gagging her, and stealing cash and jewellery. The second offence, five days later, involved entering the home of a 72-year-old man and his 68-year-old wife while armed with knives, physically manhandling the male victim, and stealing cash and jewellery before the wife escaped to alert police.
Judge Sides DCJ sentenced the applicant to three years imprisonment on the first count (non-parole period of two years), with a further four-year cumulative sentence on the second count (non-parole period of two years). The applicant, appearing in person, sought leave to appeal against the severity of those sentences.
Legal Issues
- Whether the sentencing judge gave sufficient credit for the applicant's guilty pleas entered at the earliest opportunity
- Whether the cumulative structure of the sentences was appropriate in the circumstances
- Whether the applicant's status as a protection inmate was properly taken into account at sentencing
Decision
The Court of Criminal Appeal found no appealable error in the sentences imposed by Judge Sides DCJ. The sentencing judge had applied a 25 per cent discount, described as the maximum ordinarily available, for the early guilty pleas. That discount was extended on both a utilitarian basis and as recognition of contrition, and the judge also acknowledged that the prosecution case would have been weaker without the admissions made through the plea.
On the question of totality (the principle that the overall sentence must be proportionate when multiple sentences are imposed), the sentencing judge had expressly considered the issue. The court noted that in backdating the sentences to 28 March 2000, the judge had subsumed an earlier nine-month sentence and effectively conferred an additional benefit on the applicant.
Regarding the protection inmate ground, Smart AJ noted that Judge Sides DCJ had in fact recorded the applicant's protection status in the Remarks on Sentence. The sentencing judge had noted the applicant was placed on protection because he was stood over by other prisoners, though the applicant himself told the Court of Criminal Appeal that the reason was the nature of his offences.
The Court expressed genuine sympathy for the applicant's personal circumstances, including the deaths of his step-brother and the mother of his children, and the difficulties he faced seeing his daughters. Nonetheless, the Court concluded that the sentences were as low as could properly be imposed given the serious and terrifying nature of the offences against elderly, vulnerable people.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A 25 per cent discount for an early guilty plea was treated as the maximum ordinarily available under the applicable sentencing framework, and its application was upheld by the Court of Criminal Appeal.
- In dismissing the appeal, the Court confirmed that personal hardship and sympathetic personal circumstances, while relevant to sentencing, do not override the gravity of serious offences against vulnerable victims.
- Where a sentencing judge has expressly addressed totality and structured cumulative sentences with backdating that absorbed an earlier sentence, an appellate court is unlikely to find error in that approach.
- No error was established merely because the applicant could point to other cases where sentences were served concurrently; the existence of concurrent sentences in comparable matters does not automatically require the same approach.
- A ground of appeal based on a sentencing factor being overlooked will not succeed where the sentencing judge's Remarks on Sentence demonstrate that the factor was in fact considered.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(2) (aggravated break and enter with intent)
- Justices Act 1902 (NSW), s 51A
Cases cited:
- No specific cases are identified in the provided text, though the judgment notes that Judge Sides DCJ examined Court of Criminal Appeal authorities in the court below.