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Court of Criminal Appeal 15 February 2002

Regina v S Hassen

[2002] NSWCCA 25

Theft & property
CRIMINAL LAW & PROCEDURE SENTENCE APPEAL AGAINST SEVERITY SPECIAL CIRCUMSTANCES

Citation: Regina v S Hassen [2002] NSWCCA 25
Court: New South Wales Court of Criminal Appeal
Date: 15 February 2002
Judge(s): Kirby J, Buddin J

Background

The appellant was convicted by a jury in the District Court of break, enter and steal under s 112(1) of the Crimes Act 1900. The offending involved breaking into a residential property and stealing goods valued at approximately $1,000. An eyewitness who knew the appellant identified him in the act and gave evidence for the Crown.

Shadbolt DCJ sentenced the appellant to four years imprisonment with a non-parole period of three years. His Honour declined to find special circumstances, which under the Crimes (Sentencing Procedure) Act 1999 can justify a shorter non-parole period relative to the head sentence.

The appellant appeared in person on the appeal, relying on a letter to the court setting out his grounds.

  • Whether the sentencing judge erred in declining to make a finding of remorse
  • Whether the sentencing judge erred in refusing to find special circumstances, thereby declining to extend the additional (parole) term
  • Whether the overall sentence of four years with a three-year non-parole period was manifestly excessive

Decision

On the question of remorse, the Court found no error. The appellant had pleaded not guilty, did not give evidence on sentence, and told a probation officer after conviction that he was innocent. The sentencing judge's conclusion that no contrition had been shown was entirely warranted.

On special circumstances, the Court acknowledged that some of the factors raised, particularly the appellant's history of heroin addiction and long-term methadone treatment, were capable of constituting special circumstances. However, applying the principles from Regina v Simpson [2001] NSWCCA 534 and Regina v GDR (1994) 34 NSWLR 376, the Court noted that an appellate court faces well-recognised restraints in interfering with such a discretionary judgment. The sentencing judge was not bound to regard the identified circumstances as special, and no error was established.

On manifest excess, the Court found that the sentence, while at the upper end of the relevant range, was not outside the sentencing discretion available to the judge. The appellant's extensive criminal history spanning two decades, the accumulation of over thirteen years of prior custodial sentences, and the fact that he was subject to a recognisance at the time of the offence all supported a sentence emphasising both general and specific deterrence. Judicial Commission statistics confirmed the sentence fell within the accepted range.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is not bound to find special circumstances merely because some of the identified factors, such as drug dependency, are capable in principle of meeting that description. The determination involves both a factual and a discretionary judgment, and appellate courts are slow to interfere.
  • In dismissing the appeal, the Court confirmed that an appellant who pleads not guilty, declines to give evidence on sentence, and maintains innocence post-conviction provides no foundation for a finding of remorse.
  • Where a sentence falls within the range identified by Judicial Commission statistics, even at the upper end, it will not ordinarily be characterised as manifestly excessive.
  • No error was established in the sentencing judge placing significant weight on specific deterrence where an offender has accumulated a lengthy history of similar offences across two decades and has continued to reoffend while subject to recognisances.
  • The restraints on appellate intervention in special circumstances decisions are well settled, as confirmed by the Court of Criminal Appeal in Regina v Simpson [2001] NSWCCA 534 and reaffirmed in this decision.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- Regina v Simpson [2001] NSWCCA 534
- Regina v GDR (1994) 34 NSWLR 376
- Regina v Ponfield (1999) 48 NSWLR 327