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Court of Criminal Appeal 20 May 2005

Stephen Martin Andrews v R

[2005] NSWCCA 199

Theft & property
SENTENCE

Citation: [2005] NSWCCA 199
Court: New South Wales Court of Criminal Appeal
Date: 20 May 2005
Judge(s): Simpson J, Buddin J, Hall J

Background

The applicant pleaded guilty in the Local Court to six offences of aggravated break, enter and commit a serious indictable offence (larceny), with the aggravating factor being that each offence was committed in company. The offences were carried out over four days against sporting clubs, primarily golf and bowling clubs, during a road trip from Adelaide to Queensland. The offenders broke into premises at night and forced open poker machines, stealing nearly $4,000 in total and causing more than $3,000 in damage.

The applicant was sentenced in the District Court to a series of cascading fixed terms, producing an overall effective sentence of 5 years 4 months with a non-parole period of 4 years. The sentence on count 6 included a non-parole period of 2 years 8 months within a total term of 4 years.

The applicant sought leave to appeal, contending that the sentencing judge failed to give adequate weight to his subjective circumstances, including significant ongoing physical health problems and genuine contrition demonstrated through full admissions to police in circumstances where the Crown case was not strong.

  • Whether the sentencing judge gave sufficient weight to the applicant's subjective circumstances, including serious and chronic health conditions
  • Whether the applicant was entitled to further mitigation for contrition, given the value of his admissions to police in the context of a weak Crown case
  • Whether the principles in R v Ellis (concerning disclosure of otherwise undetected offending) applied to the applicant's situation
  • Whether the overall sentence on count 6 was manifestly excessive

Decision

The Court of Criminal Appeal found that the sentencing judge had not given adequate weight to the applicant's medical conditions. The applicant suffered from a range of serious chronic health problems arising from injuries sustained in a cycling accident in 1983, including the loss of his spleen, partial kidney resection, hypertension, asthma, osteoarthritis, and an elevated risk of cardiac disease. Medical evidence indicated these conditions would be materially exacerbated by imprisonment, particularly given delays in accessing specialist clinics within the prison system.

The Court also accepted that the sentencing judge failed to give the applicant proper credit for contrition. The sentencing judge had expressed doubt about the genuineness of the applicant's remorse by reference to his criminal history, yet had separately acknowledged the particular value of the applicant's full and frank admissions given the weakness of the Crown case. That combination of findings indicated the applicant was entitled to some further reduction in sentence to reflect his contrition and cooperation.

The Court rejected the applicant's submission that the R v Ellis principles applied. That doctrine relates to disclosures of criminal conduct that would otherwise have gone undetected, and the Court was not satisfied that the circumstances here met that threshold. Similarly, the provisions of section 23 of the Crimes (Sentencing Procedure) Act were not considered to be of real significance.

The Court concluded that intervention and resentencing were warranted, though it emphasised that any reduction had to be modest given the applicant's lengthy criminal history for dishonesty offences and the relevance of personal deterrence. Sentences on counts 1 to 5 were confirmed; the sentence on count 6 was quashed and replaced with a reduced term.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed in respect of counts 1 to 5 confirmed
  • Sentence imposed in respect of count 6 quashed
  • In lieu thereof, the applicant sentenced to a non-parole period of 2 years 2 months commencing 20 March 2005 and expiring 19 May 2007, with a total term of 3 years 4 months commencing 20 March 2005 and expiring 19 July 2008
  • The applicant eligible for parole on 19 May 2007

Key Takeaways

  • Serious and chronic health conditions that will foreseeably be exacerbated by imprisonment constitute a relevant subjective factor that a sentencing court must weigh with genuine care, not merely acknowledge.
  • Where a sentencing judge finds that an offender's admissions had particular value because the Crown case was not strong, consistency in reasoning requires that contrition also receive meaningful weight, rather than being effectively negated solely by reference to criminal history.
  • A lengthy history of similar offending does not eliminate the relevance of subjective mitigating factors; it heightens the importance of personal deterrence, but does not permit the court to disregard other considerations entirely.
  • The R v Ellis discount for cooperating with authorities applies specifically to disclosures of offending that would otherwise have remained undetected. The Court of Criminal Appeal confirmed it did not apply where that threshold was not met.
  • In resentencing, the Court of Criminal Appeal kept the reduction modest, reflecting the tension between significant subjective factors on one hand and the seriousness of the applicant's criminal antecedents on the other.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), including ss 21A, 23, and 54A

Cases:
- R v Ellis (1986) 6 NSWLR 603
- R v Ponfield (1999) 48 NSWLR 327
- R v Roby [2003] NSWCCA 242
- Veen v The Queen (No 2) (1988) 164 CLR 465