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Court of Criminal Appeal 6 December 2001

Regina v Shane John Ravet

[2001] NSWCCA 535

Theft & property
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE BREAK, ENTER AND STEAL OFFENCE COMMITTED WHILE ON PAROLE OBJECTIVE SERIOUSNESS OF OFFENCE DETERRANCE

Citation: Regina v Shane John Ravet [2001] NSWCCA 535
Court: NSW Court of Criminal Appeal
Date: 6 December 2001
Judge(s): Stein JA, Hidden J, Kirby J

Background

The Crown appealed against a sentence imposed by Judge Williams in the District Court on 10 August 2001. The respondent had pleaded guilty to two counts on indictment (break, enter and steal, and break and enter with intent) and a further break, enter and steal matter committed to the District Court for sentencing. All three offences involved after-hours entries into retail shops in shopping centres across Sydney and Chatswood.

The District Court sentenced the respondent to two years imprisonment on the indictment counts, backdated to 20 December 2000 when he was taken into custody, with a non-parole period of 12 months. A section 9 good behaviour bond was imposed for the third matter. Critically, the respondent was on parole at the time of all three offences, having previously been convicted of robbery in company and sentenced to three and a half years imprisonment. His parole had been revoked in August 2000.

The respondent was 29 years of age with a lengthy criminal history dating back to 1987, closely connected to a long-standing heroin addiction. By the time of sentencing, he had made notable progress in custody, completing rehabilitation programmes and receiving acceptance into a residential drug rehabilitation centre scheduled to begin on 19 December 2001, the date his parole was to commence.

  • Whether the sentence failed to reflect the objective seriousness of the offences
  • Whether the sentencing judge gave insufficient weight to general and specific deterrence
  • Whether the judge failed to make adequate findings of fact to support the sentence
  • Whether it was an error to characterise the respondent's problem as "principally medical rather than criminal" in nature
  • Whether the backdating of the sentences to the date of arrest was appropriate, given the respondent was on parole at the time of the offences
  • Whether the Court of Criminal Appeal should exercise its residual discretion to dismiss the appeal even if error were established

Decision

Stein JA, writing the lead judgment, rejected the Crown's submission that the sentencing judge made no adequate findings of fact. His Honour found the brief references to the facts were sufficient given the unremarkable nature of the offences, which were aptly described as run-of-the-mill break and enters of shops after hours. He also rejected the submission that describing the respondent's drug addiction as "principally medical" was an error, characterising it as an accurate observation that unless the respondent ceased drug use, re-offending was likely. While Stein JA acknowledged the case for a longer sentence was arguable, he concluded the Court should not intervene, having regard to the respondent's rehabilitation progress and the opportunities available to him in the immediate future.

Hidden J declined to express a concluded view on whether the backdating of the sentences constituted error but was satisfied the Court's residual discretion required dismissal of the appeal. He emphasised that it was clearly in the community's interest for the respondent to access the rehabilitation opportunities then immediately available.

Kirby J took the most direct position: he found that error had been established and that the sentence was manifestly inadequate, principally because backdating the sentence to the date of arrest was inappropriate for an offender who was then on parole. In Kirby J's view, this had the effect of rendering the non-parole period inadequate, which failed to reflect the minimum period justice required the respondent to serve. Nonetheless, Kirby J joined in the dismissal of the appeal, persuaded by the overriding discretion considerations described by Stein JA.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Two of three judges found error in the District Court's approach, with Kirby J expressly holding the sentence was manifestly inadequate, yet all three agreed the Court's residual discretion required the appeal to be dismissed.
  • Backdating a sentence to the date of arrest can be problematic where an offender was serving a parole period at the time of the offences, as it may produce a non-parole period that does not reflect the minimum time justice requires be served.
  • The Court of Criminal Appeal confirmed that the residual discretion to dismiss a Crown sentence appeal can be exercised where, even if error is established, strong rehabilitation prospects and imminent rehabilitative opportunities make intervention contrary to the community's interest.
  • Characterising an offender's drug addiction as a medical problem, in the context of sentencing reasons, does not necessarily constitute legal error where the observation is directed to the likelihood of re-offending if the addiction is not addressed.
  • Referring briefly to the facts of straightforward offences in sentencing reasons may be sufficient where those facts are unremarkable and are otherwise before the court.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), ss 112(1), 113(1)
- Justices Act 1902 (NSW), s 51A

Cases:
- Bugmy v The Queen (1990) 169 CLR 525
- Deakin v The Queen (1984) 54 ALR 765
- R v Allpass (1994) 73 A Crim R 561
- R v Caridi (Unreported, NSWCCA, 3 December 1987)
- R v Kaiva (Unreported, NSWCCA, 9 November 1998)
- R v Webb (Unreported, NSWCCA, 9 November 1998)