Citation: [2003] NSWCCA 278
Court: New South Wales Court of Criminal Appeal
Date: 5 September 2003
Judge(s): Wood CJ at CL, Greg James J, Howie J
Background
The applicant was convicted by a jury in the District Court of three offences arising from a violent home invasion in July 2001. She and a co-offender forced their way into a townhouse occupied by a woman and her ten-month-old child. The applicant struck the victim twice with a baseball bat, demanded money, and then smashed property in the premises when her demand was refused.
Judge Bellear sentenced the applicant to 6 years imprisonment with a non-parole period of 3 years for the primary offence of aggravated break and enter, with concurrent fixed terms of 2 years and 12 months for the remaining counts. The sentences were backdated to the date the applicant entered custody.
The applicant, who was unrepresented on the appeal, sought leave to appeal on the ground that the sentences were manifestly excessive and that the sentencing judge had dealt with her harshly. She filed written submissions and addressed the Court in person.
Legal Issues
- Whether the sentences imposed by Judge Bellear were manifestly excessive having regard to the nature and circumstances of the offences
- Whether the sentencing judge gave sufficient weight to the applicant's subjective circumstances, including her youth, lack of prior criminal record, and the welfare of her young child
- Whether the sentencing judge was correct to place significant weight on general deterrence and denunciation
- Whether any appealable error in the remarks on sentence could be identified
Decision
The Court of Criminal Appeal granted leave to appeal but unanimously dismissed the appeal. Howie J, with whom Wood CJ at CL and Greg James J agreed, found that no error had been established in either the sentencing judge's remarks or the sentences imposed.
The Court accepted that general deterrence and denunciation were entirely appropriate sentencing considerations given the serious nature of the offences. The applicant entered an occupied home armed with a weapon, used corporal violence against the victim, and committed the offence in company. These features, combined with the applicant's continued lack of remorse at the time of sentencing, meant a substantial custodial term was warranted despite her youth and clean prior record.
The Court addressed the applicant's comparison with the co-offender, noting that he had, by the time of sentencing, admitted involvement and expressed genuine remorse, and that psychiatric considerations also applied in his case. Accordingly, the identical sentence he received did not demonstrate error in the applicant's case.
Finally, the Court rejected the argument that insufficient weight had been given to the applicant's good character. The gravity of the offending left the sentencing judge no real alternative to a significant term of imprisonment. The impact of the sentence on the applicant's child and the difficulties faced by the applicant's mother in caring for the child were not found to be sufficiently exceptional to warrant reduction of an otherwise appropriate sentence.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that general deterrence and denunciation are legitimate and significant sentencing considerations where serious violence is committed during a home invasion against a vulnerable occupant
- A lack of remorse at the time of sentencing is a meaningful aggravating factor, capable of distinguishing an offender from a co-offender who has acknowledged wrongdoing and shown insight
- Good character and a clean prior record do not operate to displace a substantial custodial sentence where the gravity of the offending demands it
- The impact of imprisonment on the welfare of a dependent child is relevant to sentencing, but must rise to an exceptional level before it can operate to reduce an otherwise appropriate sentence
- No appealable error could be established merely because the applicant expressed remorse or demonstrated rehabilitation during the period of imprisonment following sentencing, in the absence of demonstrated error in the original sentencing exercise
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 99 (demanding money with intent to steal), 112(2) (aggravated break and enter), 195 (malicious damage to property), 105A (circumstances of aggravation)
Cases: No cases were cited in the provided text of the judgment.