Citation: Regina v John Gordon Porteous [2005] NSWCCA 115
Court: NSW Court of Criminal Appeal
Date: 6 April 2005
Judge(s): Giles JA, Hoeben J, Johnson J
Background
The applicant pleaded guilty in the Port Macquarie District Court to two offences: break, enter and commit a serious indictable offence (larceny) in circumstances of aggravation under s.112(2) of the Crimes Act 1900, and taking and driving a conveyance without consent under s.154A. The s.112(2) offence carried a maximum penalty of 20 years imprisonment and, having been committed after 1 February 2003, attracted a standard non-parole period of five years.
The offence involved a home invasion at a holiday property in which an elderly couple, one of whom was terminally ill and physically disabled, were bound with stockings, had pillowcases placed over their heads, and were threatened by the applicant who falsely claimed to be armed. The applicant stole $70 cash and credit cards, drove the victims' vehicle to a nearby town to attempt ATM withdrawals, and was apprehended by police shortly afterwards.
At first instance, Charteris DCJ sentenced the applicant to six years and nine months imprisonment for the s.112(2) offence, with a non-parole period of three years and nine months. The applicant sought leave to appeal, arguing the sentencing judge had erred in calculating the discount for his early guilty plea and expression of remorse, and in assessing the objective seriousness of the offence.
Legal Issues
- Whether the sentencing judge applied an adequate discount to the head sentence for the applicant's early guilty plea and demonstrated remorse
- Whether the sentencing judge correctly assessed the objective seriousness of the offence relative to the standard non-parole period for s.112(2)
- Whether pre-2003 sentencing statistics remained useful reference points when sentencing for a standard non-parole period offence
Decision
On the first ground, the Court of Criminal Appeal accepted that the sentencing judge had not applied a sufficient discount to the head sentence for the early guilty plea and remorse. The applicable discount for a plea of this kind, in accordance with established authority, warranted a reduction in the head sentence. The Court held that a head sentence of five years and nine months was appropriate in place of the six years and nine months imposed below, a reduction of one year.
However, the Court declined to reduce the non-parole period. Johnson J held that three years and nine months represented the minimum term the applicant ought serve, given the objective seriousness of the offence. The finding of special circumstances by the sentencing judge was confirmed as appropriate, noting that the resulting non-parole period of 65.2% of the revised head sentence represented a significant departure from the standard statutory proportion.
On the second ground, the Court rejected the applicant's argument that the sentencing judge had overestimated the objective seriousness of the offence. A head sentence starting point of eight years was considered appropriate given the gravity of the conduct, with the maximum penalty of 20 years and the five-year standard non-parole period both serving as statutory reference points under R v Way.
The Court also addressed the limited utility of pre-2003 sentencing statistics. Because the standard non-parole period regime commenced on 1 February 2003, statistics drawn from cases sentenced before that date were said to be of very limited assistance when sentencing under the new framework.
Orders Made
- Leave to appeal granted as to the sentence for the s.112(2) offence
- Leave to appeal refused as to the sentence for the s.154A offence
- Appeal allowed for the s.112(2) offence and the original sentence quashed
- The applicant re-sentenced to a non-parole period of three years and nine months commencing 8 November 2003 and expiring 7 August 2007, with a balance of term of two years commencing 8 August 2007 and expiring 7 August 2009
- Recommendations to prison authorities made by Charteris DCJ (regarding anger management, drug and alcohol counselling, and psychiatric counselling for depression) confirmed
Key Takeaways
- The Court of Criminal Appeal confirmed that an early guilty plea and demonstrated remorse must be reflected in a meaningful reduction to the head sentence, even where the non-parole period is left undisturbed.
- Under the standard non-parole period regime introduced in February 2003, both the maximum penalty and the standard non-parole period serve as the primary statutory reference points for sentencing, as confirmed in R v Way.
- Pre-2003 sentencing statistics are of very limited use when sentencing for offences that now attract a standard non-parole period, because the legislative amendments represented a significant change to the sentencing framework.
- A non-parole period can be maintained at the level fixed by the sentencing court even where the head sentence is reduced on appeal, provided the non-parole period independently reflects the minimum term warranted by the objective criminality of the offence.
- Special circumstances justifying a departure from the standard statutory proportion between non-parole period and head sentence may be found even in objectively serious cases, provided the sentencing court's findings support that conclusion.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss.112(2), 154A
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 1A of Part 4
Cases:
- R v Way (2004) 60 NSWLR 168
- R v Thomson and Houlton (2000) 49 NSWLR 383
- Cameron v The Queen (2002) 209 CLR 339
- Power v The Queen (1974) 131 CLR 623
- R v Sharma (2002) 54 NSWLR 300
- R v Bloomfield (1998) 44 NSWLR 734
- R v GJ Davies [2004] NSWCCA 319
- R v Pellew [2004] NSWCCA 434
- R v Johnstone [2004] NSWCCA 307
- R v Scott [2003] NSWCCA 286
- R v Newman [2004] NSWCCA 113
- R v Nai Poon [2003] NSWCCA 42