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Court of Criminal Appeal 19 August 2004

Regina v Levett

[2004] NSWCCA 276

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW: YOUNG OFFENDER GOOD PROSPECTS OF REHABILITATION WHETHER EFFECTIVE SENTENCE EXCESSIVE

Citation: Regina v Levett [2004] NSWCCA 276
Court: New South Wales Court of Criminal Appeal
Date: 19 August 2004
Judge(s): Hidden J, Kirby J

Background

The applicant was a young man aged between 19 and 20 at the time of the relevant offences, who had pleaded guilty in the District Court to a range of charges including break, enter and steal, two counts of stealing from a dwelling, larceny, receiving, and assault occasioning actual bodily harm. Nine further dishonesty offences were taken into account on a Form 1 (a procedural mechanism that allows additional offences to be considered at sentencing without separate convictions being recorded). The offences were committed across almost a full year, between March 2001 and February 2002.

Cooper DCJ in the District Court imposed a principal sentence of seven years imprisonment with a non-parole period of four years, backdated to 17 January 2002. The sentences on the other charges were shorter and ran wholly concurrent with the non-parole period on the principal charge.

The applicant sought leave to appeal against sentence on the basis that the effective sentence was excessive, having regard in particular to his youth and prospects of rehabilitation.

  • Whether the effective sentence of seven years with a four-year non-parole period was excessive in all the circumstances.
  • Whether sufficient weight had been given to the applicant's youth and good prospects of rehabilitation.
  • Whether the sentence should be backdated by an additional month to properly credit the applicant's pre-sentence custody (the Crown conceded this point regardless of the appeal's outcome).

Decision

Hidden J (with whom Kirby J agreed) accepted that the case involved significant aggravating features. The offences were committed over a prolonged period, the applicant was on bail for earlier offences when many of the later offences were committed, and he was also subject to a Local Court bond throughout. The persistence of offending in the face of these obligations weighed heavily against him.

However, the court gave substantial weight to the applicant's subjective circumstances. He was very young at the time of the offences, had not previously served a full-time custodial sentence, and had demonstrated genuine rehabilitation while in custody. That rehabilitation included engagement in educational and personal development courses, participation in a methadone program, the absence of illicit drug use, pursuit of drug and alcohol counselling, and re-established ties with a supportive foster family.

Hidden J concluded that an aggregate sentence of six years with a non-parole period of three years, commencing 16 December 2001, was appropriate. The court found that special circumstances existed justifying the extended ratio between the non-parole period and the head sentence, and that this outcome adequately reflected retribution and deterrence without undermining the prospects of rehabilitation. The court achieved this result by substituting the sentence on the principal break, enter and steal charge, leaving the sentences on the other charges undisturbed and concurrent.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The sentence for the break, enter and steal offence was quashed and replaced with a sentence of six years imprisonment, commencing 16 December 2001, with a non-parole period of three years.
  • Sentences on all other charges confirmed.
  • The applicant became eligible for release on parole on 15 December 2004.

Key Takeaways

  • Persistent offending on bail across multiple arrests is a significant aggravating factor in sentencing, but it does not displace consideration of youth and rehabilitation prospects.
  • A young offender who has never previously served full-time custody may attract a meaningful reduction in sentence where genuine rehabilitation is demonstrated during the period in custody awaiting sentence.
  • The Court of Criminal Appeal confirmed that "special circumstances" under the Crimes (Sentencing Procedure) Act can justify a non-parole period that represents a substantially smaller proportion of the head sentence, particularly where a longer supervisory period on parole is warranted.
  • Pre-sentence custody must be accurately credited; here, the Crown conceded a backdating error of one month irrespective of the appeal's outcome, and the substituted sentence corrected that error.
  • In restructuring the sentencing orders, the Court of Criminal Appeal declined to revisit the sentences on the lesser charges, achieving the adjusted aggregate by substituting only the principal sentence and leaving concurrent terms intact.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), s 21A

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Ponfield & Ors (1999) 48 NSWLR 327