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Court of Criminal Appeal 12 March 2004

MJM v R

[2004] NSWCCA 66

Assault & violenceTheft & propertyPublic order & justice offences
APPEAL AGAINST SEVERITY OF SENTENCES PLEAS OF GUILTY FORM 1 OFFENCES NINE COUNTS OF BREAK, ENTER AND STEAL ENTER LAND WITH INTENT TO STEAL USING A WEAPON TO RESIST ARREST

Citation: MJM v R [2004] NSWCCA 66
Court: NSW Court of Criminal Appeal
Date: 12 March 2004
Judge(s): Grove J, Simpson J, Sperling J

Background

The applicant, an Aboriginal man in his mid-twenties at the time of offending, pleaded guilty in the District Court at Gosford to eleven charges arising from a single day of offending on 17 October 1995. The charges included nine counts of break, enter and steal, one count of entering land with intent to steal, and one count of using a weapon (a tomahawk) to resist arrest. Two further offences were dealt with on a Form 1 basis (driving in a dangerous manner and possession of a prohibited drug).

The offending involved systematically targeting residential premises, ransacking them and stealing money, jewellery and personal items. When police located the applicant's van, he fled, drove through a fence, and resisted arrest by threatening officers and a police dog with the tomahawk. He was not sentenced until April 2002, having spent approximately six years evading a bench warrant by travelling interstate.

English DCJ imposed a total head sentence of six years with a non-parole period of four years, with the sentences structured as partially cumulative terms. The applicant sought leave to appeal on the ground that the sentences were excessive.

  • Whether the sentencing judge erred in the exercise of her sentencing discretion, such that appellate intervention was warranted under the principles in House v The King
  • Whether the sentencing remarks adequately addressed the applicant's subjective circumstances, including his Aboriginal background and the principles in R v Fernando
  • Whether fresh evidence (introduced by affidavit) could be admitted on appeal to supplement or supplement what was before the sentencing judge
  • Whether post-sentence events and conduct were a proper basis for appellate review, or whether such matters were better addressed through executive or administrative processes

Decision

The Court granted leave to appeal but dismissed the appeal, finding no error in the sentencing process that would justify interference.

On the question of subjective circumstances, the Court acknowledged that the sentencing judge did not have the benefit of a pre-sentence report or psychiatric report, both of which had been ordered but never produced. The applicant's legal representative had not sought an adjournment to pursue them, taking the view that the relevant material could be drawn out through the applicant's own evidence. The Court found this did not amount to an error by the sentencing judge, who had proceeded on the material available.

The Court considered the applicant's Aboriginal background and the recognised principles from R v Fernando, which acknowledge the complex social, cultural and historical factors that may bear on the sentencing of Aboriginal offenders. While the sentencing judge's remarks on this topic were limited, the Court was satisfied that the overall sentence did not demonstrate error in the exercise of the discretion.

The application to adduce fresh evidence was refused. Applying the principles drawn from The Queen v Many and related authorities, the Court confirmed that post-sentence events and conduct are not a proper basis for appellate review of sentence. Such matters fall within the province of the executive government, not an appellate court. Any remedy for changed circumstances since sentence was to be pursued through administrative channels rather than through this appeal.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed
  • The content of the sealed envelope described as an affidavit of comfort ordered to be returned to the applicant
  • No special sealing order made in respect of the applicant's own affidavit

Key Takeaways

  • No error was established in the sentencing judge's approach, notwithstanding the absence of a pre-sentence report and psychiatric report, where the failure to obtain those reports was attributable to a forensic decision by the applicant's own legal representative rather than any fault of the court.
  • The Court of Criminal Appeal confirmed that appellate review of sentence is governed by House v The King: interference requires identification of a specific error in the exercise of the sentencing discretion, not merely a different view of the appropriate sentence.
  • Under the principles in R v Fernando, the sentencing court is required to take into account the distinctive social and historical circumstances affecting Aboriginal offenders; the Court of Criminal Appeal here reviewed whether those matters were adequately addressed, though found no appellate error on the facts.
  • Post-sentence events and subsequent conduct do not provide a proper basis for appellate intervention in a sentence appeal; the Court confirmed that review of sentence in light of subsequent events belongs to the executive government, not an appeal court.
  • Fresh evidence will not readily be admitted on a sentence appeal where the relevant circumstances were known to the applicant at the time of sentencing, and any remedy based on changed circumstances is more appropriately pursued through administrative processes.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), Division 2, Part 13A
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 3, Part 3; s 44
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- House v The King (1936) 55 CLR 499
- R v Fernando (1992) 76 A Crim R 58
- R v Cartwright (1989) 17 NSWLR 243
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Willard [2001] NSWCCA 6
- The Queen v Many (1990) 51 A Crim R 54
- The Queen v P [2003] NSWCCA 298
- The Queen v Pearce (1998) 194 CLR 610
- The Queen v W [2001] NSWCCA 172