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Court of Criminal Appeal 18 May 2005

R v Lucas

[2005] NSWCCA 194

Assault & violenceTheft & property
APPEAL AGAINST SEVERITY OF SENTENCE ADDITIONAL OFFENCES TAKEN INTO ACCOUNT LARCENY PLEAS OF GUILTY SPECIAL CIRCUMSTANCES ABORIGINAL HERITAGE

Citation: R v Lucas [2005] NSWCCA 194
Court: NSW Court of Criminal Appeal
Date: 18 May 2005
Judges: Simpson J, Buddin J, Hall J

Background

The applicant, a young Aboriginal man aged 18 at the time of the offences, pleaded guilty in the District Court at Orange to two counts of break, enter and commit a serious indictable offence. The second count was in its aggravated form, involving a physical confrontation with a female occupant during a residential break-in. Two further offences (an attempted car theft and a larceny) were taken into account on a Form 1 basis.

Judge Finnane sentenced the applicant to an aggregate head sentence of seven years with an aggregate non-parole period of five years. The second sentence was made wholly cumulative on the non-parole period of the first. Although the sentencing judge expressly found special circumstances justifying a departure from the standard statutory proportion between head sentence and non-parole period, the actual reduction in the aggregate non-parole period amounted to only three months.

The applicant sought leave to appeal on the grounds that the aggregate sentence was manifestly excessive and that the aggregate non-parole period did not adequately reflect the special circumstances found to exist.

  • Whether the aggregate head sentence of seven years was manifestly excessive in all the circumstances
  • Whether the aggregate non-parole period of five years properly reflected the sentencing judge's finding of special circumstances, particularly having regard to the applicant's Aboriginal heritage, drug dependence, youth, and prospects of rehabilitation

Decision

The Court of Criminal Appeal rejected the first ground of appeal. Simpson J, with whom Buddin J and Hall J agreed, found that the total head sentence of seven years remained within the range legitimately available to the sentencing judge. The totality of the offending, including the aggravated break-in involving violence, supported the overall sentence length.

The Court upheld the second ground. Simpson J found that, while Judge Finnane clearly intended to give the applicant a meaningful opportunity to spend a longer portion of his sentence on supervised parole, the structure of the sentences as imposed did not achieve that objective. The accumulation of the second sentence wholly on the non-parole period of the first resulted in a combined non-parole period that was, in practical terms, barely reduced from the statutory expectation.

The Court accepted the subjective case for the applicant as compelling. The applicant's background was consistent with the pattern of deprivation and disadvantage described in R v Fernando. He had been without schooling until age eight, left school illiterate at thirteen, and began using substances from the age of nine. By the time of sentencing he had engaged with a methadone programme, which the Court treated as a positive step. His age at sentencing (19 years) and his need for sustained support on release were central to the Court's reasoning.

The appeal was allowed in part. The Court restructured the non-parole periods to produce a meaningful reduction in the aggregate non-parole period, preserving the total head sentence. The adjustment was confined to ensuring the sentences properly gave effect to what the sentencing judge had intended.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • The applicant re-sentenced as follows:
  • Count 1 (inclusive of the two Form 1 offences): non-parole period of two years commencing 10 December 2003 and expiring 9 December 2005, with a balance of term of five years expiring 9 December 2010
  • Count 2: non-parole period of two years commencing 10 December 2005 and expiring 9 December 2007, with a balance of term of two years expiring 9 December 2009
  • Earliest date of eligibility for release on parole: 10 December 2007

Key Takeaways

  • A finding of special circumstances must be given practical effect in the structure of the sentence. Identifying special circumstances but then accumulating sentences in a way that reduces the non-parole period by only three months is inconsistent with the intention that finding is meant to serve.
  • The Court of Criminal Appeal confirmed that questions of concurrency and accumulation are discretionary and must be assessed in light of the totality of the offending.
  • Where a sentencing judge's intention is clear but the orders made do not achieve that intention, an appellate court may intervene and restructure the sentence, without necessarily disturbing the overall head sentence.
  • Under R v Fernando, an offender's Aboriginal heritage, personal history of deprivation, and drug dependence are relevant subjective circumstances in sentencing, and the Court here treated them as central to the finding of special circumstances.
  • Upholding only the second ground of appeal, the Court confined its intervention to the non-parole period, leaving the aggregate head sentence of seven years undisturbed as within the available sentencing range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112 (break, enter and commit a serious indictable offence, including the aggravated form)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 3, Part 3 (taking additional offences into account on sentence); s 54D (standard non-parole period)

Cases:
- R v Fernando (1992) 76 A Crim R 58 (principles relevant to sentencing offenders of Aboriginal heritage)