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Court of Criminal Appeal 21 February 2003

R v PATTEN

[2003] NSWCCA 33

DrugsTheft & property

Citation: R v Patten [2003] NSWCCA 33
Court: New South Wales Court of Criminal Appeal
Date: 21 February 2003
Judge(s): James J; Greg James J

Background

The appellant, Wesley John Patten, pleaded guilty in the District Court to one charge of breaking, entering and stealing in circumstances of aggravation, namely that he acted in company with three co-offenders. The offence occurred in the early hours of 20 December 2000, when the four men smashed into a Botany café and stole a cigarette machine before being apprehended by police. Upon arrest, Patten was found carrying 3.2 grams of methylamphetamine, which was taken into account as a further offence at sentencing.

District Court Judge Knight sentenced Patten to three years periodic detention with a non-parole period of one year and eight months. On the same day, his Honour sentenced the three co-offenders to two years periodic detention each, with non-parole periods of twelve months (or no separate non-parole period in one case where concurrent sentences applied for an unrelated offence).

Patten sought leave to appeal against his sentence, arguing primarily on the basis of parity: that the disparity between his sentence and those of his co-offenders was not adequately justified by any differences in their relative circumstances or culpability.

  • Whether the sentence imposed on Patten was excessive having regard to the sentences received by his co-offenders, giving rise to a parity or lack of appropriate disparity argument.
  • Whether the sentencing judge gave excessive weight to the further offence of drug possession when arriving at the total sentence.
  • Whether the sentence should be reduced and, if so, what the appropriate sentence was upon re-sentencing.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal. The Court found that the sentence of three years was not adequately differentiated from those of the co-offenders in a way that was justified by the objective and subjective circumstances of the case. While Patten's possession of methylamphetamine was a legitimate aggravating factor distinguishing him from his co-offenders, the sentencing judge had allowed what the Court considered an excessive amount for that further offence.

James J accepted that Patten had a number of significant subjective factors in his favour. These included his early guilty plea (attracting a discount of approximately one third), his lack of prior dishonesty or drug offences, positive character references relating to his involvement in the Aboriginal community, his primary custody of a young child, his participation in high-level rugby league and television acting work, and his above-average prospects of rehabilitation. His Honour also found special circumstances, warranting an extended parole period.

On re-sentencing, James J concluded that a total sentence of two years and three months periodic detention was appropriate, with a non-parole period of fourteen months commencing 27 June 2002. Greg James J agreed with both the reasoning and the proposed sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal against sentence allowed.
  • Sentence imposed by Judge Knight in the District Court on 13 June 2002 quashed.
  • Appellant re-sentenced to two years and three months imprisonment by way of periodic detention, commencing 27 June 2002.
  • Non-parole period set at fourteen months, commencing 27 June 2002.
  • Parole order made for release on 26 August 2003.
  • First date of periodic detention noted as the date on which the appellant actually commenced serving it.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the parity principle applies with real force where co-offenders are sentenced on the same day by the same judge for the same offence, and where any disparity is not adequately explained by differences in culpability or subjective circumstances.
  • A further offence taken into account at sentencing under Part 3 Division 3 of the Crimes (Sentencing Procedure) Act must be reflected in the sentence, but the weight given to it must remain proportionate to its objective seriousness.
  • Special circumstances findings, which allow the non-parole period to be reduced relative to the head sentence, were supported here by a combination of the offender's rehabilitative prospects and his father's adverse influence during his upbringing.
  • Where the sentencing court imposes a sentence that cannot be adequately distinguished from those of co-offenders in light of the available mitigating factors, an appellate court may intervene to correct the resulting disparity.
  • Under s 112(2) of the Crimes Act, aggravated breaking, entering and stealing carries a maximum penalty of twenty years imprisonment, though the sentences here reflected the significant mitigating circumstances and the periodic detention regime applicable at the time.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2) (aggravated breaking, entering and stealing)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 3 (offences taken into account); s 9 (good behaviour bonds)
- Drug Misuse and Trafficking Act 1985 (NSW), s 10 (possession of prohibited drug)

Cases:
No cases were cited by name in the portions of the judgment provided.