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Court of Criminal Appeal 28 June 2004

Regina v Ah-See

[2004] NSWCCA 202

Theft & property
CRIMINAL LAW SENTENCING FERNANDO PRINCIPLES PROTECTIVE CUSTODY SENTENCE NOT MANIFESTLY EXCESSIVE.

Citation: Regina v Ah-See [2004] NSWCCA 202
Court: NSW Court of Criminal Appeal
Date: 28 June 2004
Judge(s): Bell J, Howie J, Hislop J

Background

The applicant, an Aboriginal man aged 40, was convicted by a District Court jury of breaking and entering a dwelling house in aggravated circumstances, specifically that he knew occupants were present at the time. The offence occurred in the early hours of 13 November 2002, when he broke into a home while the occupant and her young child were asleep. The occupant woke to find him asleep on her bedroom floor and spent a distressing 20 minutes on the phone to emergency services while he remained in the house.

Woods ADCJ sentenced the applicant to four years imprisonment with a non-parole period of three years. Concurrent sentences of six months were imposed for related offences of resisting and assaulting police. The sentence commenced from 13 November 2002.

The applicant sought leave to appeal against sentence on three grounds, contending that the sentencing judge paid insufficient regard to the Fernando principles applicable to Aboriginal offenders, failed to account for the applicant's protective custody, and imposed a manifestly excessive sentence.

  • Whether the sentencing judge gave sufficient weight to the Fernando principles, which direct courts to consider disadvantage connected to an offender's Aboriginality when sentencing
  • Whether the sentencing judge erred by failing to account for the applicant's protective custody status in determining the head sentence and whether special circumstances existed
  • Whether the sentence of four years imprisonment with a three-year non-parole period was manifestly excessive

Decision

On the first ground, the Court found no error in the sentencing judge's approach to the Fernando principles. The applicant had not raised those principles at the original sentencing hearing. The psychiatric report, based on history provided by the applicant himself, described a relatively stable childhood and schooling to Year 10. In the absence of evidence from the applicant, the sentencing judge was entitled to rely on that account over a contrary version in the pre-sentence report. The applicant's drug problem was not shown to arise from his Aboriginality, and his long-standing awareness of the effect of sleeping pills on his behaviour did not reduce the criminality of the offence.

On the second ground, the Court confirmed that protective custody can, in appropriate cases, justify a shorter head sentence or a finding of special circumstances, because such custody may be more onerous than custody in the general prison population. However, the weight given to protective custody depends on the nature and conditions of that custody, the objective seriousness of the offence, and the need for deterrence. The onus lies on the applicant to establish those matters. Here, while the sentencing judge did not expressly address the issue, the judgment as a whole showed he treated it as carrying little or no weight, having regard to the applicant's extensive criminal history, the serious nature of the offence, and the requirements of general and specific deterrence. The available material did not require a reduction in the head sentence or a finding of special circumstances.

On the third ground, the Court found the sentence was not manifestly excessive and that a lesser sentence was not warranted in law. Counsel for the applicant conceded this ground depended entirely on the first two grounds succeeding, and because they did not, it too failed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Fernando principles require sentencing courts to consider facts that exist by reason of an offender's Aboriginality, but they do not automatically reduce a sentence. The applicant must place evidence before the court establishing the relevant disadvantage or connection to the offending.
  • Where an applicant does not give evidence at a sentencing hearing, the sentencing court is entitled to rely on the history recorded in a psychiatric report over a conflicting account in a pre-sentence report.
  • Protective custody may make imprisonment more onerous and can therefore be a mitigating factor in sentencing, but the weight it carries depends on evidence of the actual conditions involved, the objective seriousness of the offence, and the demands of deterrence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's failure to expressly mention protective custody in remarks on sentence does not, by itself, establish that the factor was overlooked.
  • A long-standing awareness by the offender of the disinhibiting effect of substances on his own behaviour does not diminish the criminality of offences committed under their influence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 60(1), 112(2), 546C
- Criminal Procedure Act 1986 (NSW), Pt 3, Div 6

Cases:
- R v Fernando (1992) 76 A Crim R 58
- R v Burchell (1987) 34 A Crim R 148
- R v Coleman (1990) 47 A Crim R 307
- R v Olbrich (1999) 199 CLR 270
- Veen v R (No 2) (1988) 164 CLR 465
- R v Russell (1995) 84 A Crim R 386
- R v Totten [2003] NSWCCA 207
- R v Durocher-Yvon [2003] NSWCCA 299
- R v Mostyn [2004] NSWCCA 97
- R v Newell [2004] NSWCCA 183
- R v Newman [2004] NSWCCA 102
- R v Drew [2000] NSWCCA 384