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Court of Criminal Appeal 23 November 2001

Regina v S R Kessey

[2001] NSWCCA 469

Assault & violenceTheft & property
CROWN APPEAL FINDINGS OF FACTS BY SENTENCING JUDGE VICTIM IMPACT STATEMENT WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: Regina v S R Kessey [2001] NSWCCA 469
Court: NSW Court of Criminal Appeal
Date: 23 November 2001
Judge(s): Kirby J (with Giles JA and Sully J agreeing)

Background

The respondent, a 24-year-old man, was convicted on two charges. The first was receiving stolen property in January 2000, after being found in possession of items taken during a nearby break-in. The second, and more serious, was aggravated break, enter and steal in April 2001, when the respondent entered an occupied dwelling at 2:00 am by climbing through a kitchen window.

The circumstances of the home invasion were particularly disturbing. The sole occupant, a young woman living alone, awoke to find the respondent straddling her on her bed. She screamed, and he fled through the same window, taking money and personal items. Notably, two pieces of rope and socks were found at the scene, indicating an element of planning.

The sentencing judge in the District Court (Norrish DCJ) imposed 18 months imprisonment with an 8-month non-parole period on the home invasion charge, and a concurrent fixed term of 4 months on the receiving charge. The Crown appealed, arguing those sentences were manifestly inadequate.

  • Whether the sentencing judge's findings of fact were open on the evidence, particularly his conclusion that the respondent had no intention to harm the victim and that the rope did not significantly aggravate the offending
  • Whether the victim impact statement had been properly considered in sentencing
  • Whether the sentences imposed were manifestly inadequate given the nature and gravity of the offending

Decision

The Court of Criminal Appeal accepted some of the Crown's criticisms of the sentencing judge's factual findings, but not all. Kirby J declined to disturb the finding that the respondent's intention, once discovered, was only to escape. However, the Court accepted that the sentencing judge had impermissibly discounted the significance of the rope, which the judge himself had found was brought to the premises to restrain anyone who interrupted the offence. Finding it was not used did not neutralise its significance as a planning factor.

On the victim impact statement, the Court found the sentencing judge had failed to give the statement sufficient weight. The young woman's account of the psychological harm caused by the intrusion was relevant to the sentence, and its significance had not been adequately reflected.

The Court held the overall sentences were manifestly inadequate for offending of this gravity. The home invasion involved planning, entry into an occupied dwelling in the early hours, and a deeply frightening encounter for the victim. A non-parole period of only 8 months did not reflect the minimum period justice required to be served.

Consistent with the principle that sentences on successful Crown appeals should be fixed on a conservative basis, the Court applied a 25% discount for early guilty pleas, found special circumstances justifying a longer supervision period, and approached the matter on a totality basis (considering the overall criminality across both offences together).

Orders Made

  • The appeal was allowed.
  • The sentences imposed by Norrish DCJ were set aside.
  • On Count 1 (aggravated break, enter and steal): the respondent was resentenced to 2 years 3 months imprisonment, commencing 5 April 2001 and expiring 4 July 2003, with a non-parole period of 1 year 3 months expiring 4 July 2002.
  • On Count 2 (receiving): the original sentence of a fixed term of 4 months imprisonment, commencing 5 April 2001 and expiring 4 August 2001, was reimposed (that term having already expired by the time of the appeal).

Key Takeaways

  • A sentencing judge's finding that an offender lacked intent to harm a victim is not automatically undermined by the presence of restraint equipment at the scene, but that equipment cannot be treated as irrelevant simply because it was not used. The Court of Criminal Appeal found the rope was properly characterised as a significant aggravating factor.
  • Victim impact statements carry genuine weight in sentencing and must be reflected in the outcome. Insufficient attention to such material was identified here as an error contributing to the inadequacy of the sentence.
  • On a successful Crown appeal, the appellate court applies a conservative approach when substituting a higher sentence. This principle was applied to produce a sentence meaningfully increased from the original but not at the upper range.
  • Special circumstances (justifying a non-parole period that departs from the usual statutory ratio) can be found where post-custody conduct and rehabilitation needs indicate that an extended supervision period is warranted.
  • Where a co-existing sentence has already been served by the time of a Crown appeal, the appellate court retains discretion not to disturb that component on resentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 188
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Henry (1999) 46 NSWLR 346
- R v Ponfield (1999) 48 NSWLR 327
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Wong & Leung v The Queen [2001] HCA 64
- R v Pont [2000] NSWCCA 419
- R v Jurisic (1998) 45 NSWLR 209
- Regina v Hayes (1987) 29 A Crim R 452
- R v Morrow [1999] NSWCCA 64
- R v Holder [1983] 3 NSWLR 245
- R v Allpass (1994) 72 A Crim R 561
- Regina v Houghton [2000] NSWCCA 62
- R v Kalache [2000] NSWCCA 2
- R v Brewster (1998) 1 Cr App R 220
- Deakin v The Queen (1984) 54 ALR 765
- Bugmy v The Queen (1990) 169 CLR 525