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Court of Criminal Appeal 24 May 2002

R v Jason PROUD

[2002] NSWCCA 219

Theft & propertyPublic order & justice offences
APPEAL AGAINST SEVERITY OF SENTENCE MATTER TAKEN INTO ACCOUNT NEED TO FIND ERROR NEED TO FIND APPROPRIATE SENTENCE

Citation: R v Jason James Proud [2002] NSWCCA 219
Court: New South Wales Court of Criminal Appeal
Date: 24 May 2002
Judges: Dowd J; Smart AJ

Background

The applicant, a 29-year-old man with a criminal history including prior dishonesty offences, pleaded guilty in the District Court to one count of break, enter and steal contrary to s 112 of the Crimes Act 1900. Four further offences of the same kind were taken into account on a Form 1. The offending occurred between July 2000 and March 2001 in the Newcastle region.

The principal offence involved breaking into the home of a 68-year-old woman and stealing $40,000 in cash, representing her life savings and money received on her husband's death. The four Form 1 matters involved further residential break-ins, with stolen property totalling approximately $41,000 across all four incidents.

Armitage DCJ sentenced the applicant in the District Court to six years imprisonment, with a non-parole period of four years and six months, commencing 10 July 2001. The applicant sought leave to appeal, contending the sentence was manifestly excessive.

  • Whether the sentence of six years imprisonment was manifestly excessive in light of the applicant's difficult personal background, his drug dependency, his guilty plea, and his rehabilitative efforts in custody
  • Whether the sentencing judge erred in characterising the offending as a "professional operation"
  • Whether the sentencing judge erred in fixing the non-parole period, particularly by failing to account adequately for the applicant's overall custodial history

Decision

The Court of Criminal Appeal applied the well-established principles from House v The King (1936) 55 CLR 499, which require an appellate court to identify error in the exercise of the sentencing discretion before it can intervene. The Court also noted the additional requirement under s 6(3) of the Criminal Appeal Act 1912 that the appellate court must form a positive opinion that some other sentence was warranted in law and should have been passed.

On the question of the applicant's background, the Court accepted that the sentencing judge had considered the applicant's troubled upbringing, his history of drug dependency following his marriage breakdown, and his rehabilitative conduct in custody. The Court found no error in the way these subjective matters were weighed.

The Court accepted that the sentencing judge's description of the offending as a "professional operation" was marginally incorrect, given that the applicant's precautions amounted to no more than knocking on doors before breaking in. However, the Court found this misdescription was inconsequential, as the sentencing judge was plainly aware of the actual facts and sentenced on that basis.

On the non-parole period, the Court declined to apply the approach from R v Brown (2000) NSWCCA 423 in a way that would reduce the non-parole period by reference to the applicant's overall custodial history. The Court noted that such an approach requires considerable circumspection and should not be universally adopted, particularly where its application might result in a sentence that fails to reflect the true criminality involved. Taking the gravity of the principal offence together with the Form 1 matters, the Court concluded that no lesser sentence was warranted in law.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the threshold for appellate intervention in sentencing requires both identification of error and a positive conclusion that some other sentence was warranted in law, not merely a finding that error occurred.
  • A minor misdescription by a sentencing judge of the nature of an offence does not constitute reversible error where the judge was plainly aware of the actual facts and sentenced accordingly.
  • The approach in R v Brown, which accounts for an offender's overall custodial history when fixing a non-parole period, is not of universal application and must be applied with care to avoid producing sentences that inadequately reflect the seriousness of the offending.
  • Subjective factors including a difficult childhood, drug dependency, a guilty plea, and rehabilitative conduct in custody were all considered by the sentencing court, but their combined weight did not displace the primacy of the objective gravity of repeated residential burglaries involving substantial amounts of stolen property.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal must form a positive opinion that another sentence should have been passed before it can substitute a different sentence; it is not sufficient simply to identify a possible error in the sentencing process.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
- Criminal Appeal Act 1912 (NSW), ss 5, 6(3)

Cases
- House v The King (1936) 55 CLR 499
- R v Simpson [2000] NSWCCA 534
- Cameron v The Queen (2002) HCA 6
- Pearce v The Queen (1998) 72 ALJR 1416
- R v Henry (1999) 46 NSWLR 346
- R v Thompson and Houlten (2000) 49 NSWLR 383
- R v Ponfield (1999) 48 NSWLR 327
- R v Sharma [2002] NSWCCA 142
- R v Brown [2000] NSWCCA 428