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Court of Criminal Appeal 28 June 2005

Regina v Baxter

[2005] NSWCCA 234

Theft & property
APPEAL AGAINST SENTENCE DISCOUNT FOR PLEA OF GUILTY

Citation: Regina v Baxter [2005] NSWCCA 234
Court: NSW Court of Criminal Appeal
Date: 28 June 2005
Judge(s): Grove J, Hoeben J, Hall J

Background

The applicant was sentenced in the District Court by Phelan DCJ on 26 August 2004 for a series of break, enter and steal offences committed between 2001 and 2003, together with one offence of aggravated break, enter and steal involving the use of corporal violence against an elderly couple. Three further matters were taken into account on a Form 1 (a procedural mechanism allowing lesser charges to be considered at sentencing without separate conviction).

The sentences were structured so that all terms ran concurrently, producing a total effective term of six and a half years from 31 October 2003, with a non-parole period of four and a half years. The applicant sought leave to appeal against the sentence, arguing it was excessive.

The applicant had a substantial criminal history, a background of serious substance abuse, two significant head injuries, and had been on conditional liberty at the time of some of the later offences. His plea of guilty to the most serious offence was described by the sentencing judge as "belated."

  • Whether the sentence imposed was manifestly excessive in all the circumstances
  • Whether the sentencing judge correctly applied the discount for a plea of guilty, including where that plea was belated
  • Whether the sentencing judge erred in his use of prior convictions as an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no basis to interfere with the sentence. Hoeben J (with whom Grove J and Hall J agreed) identified that the sentencing judge's use of the applicant's prior convictions in the context of s 21A(2) involved error. However, prior convictions remained a powerful consideration under the separate sentencing principles of retribution, personal deterrence, and protection of the community, meaning the error did not produce an unjust outcome.

On the aggravated break, enter and steal offence, the court noted several statutory aggravating factors: the victims were elderly and therefore vulnerable (s 21A(2)(l)), the emotional harm caused was substantial (s 21A(2)(g)), and the offence was committed at night when the premises were likely to be occupied. The objective seriousness of the offence, involving physical violence against an elderly victim in her home, was significant.

The court observed that the concurrent running of all sentences involved substantial leniency for the applicant. Given the number of offences, the applicant's persistent recidivism, and the circumstances of the most serious offence, the court was not persuaded that a different sentence ought to have been imposed.

Subjective factors, including the applicant's troubled background, drug dependency, and psychological profile, were acknowledged as explanations for his conduct rather than excuses. The sentencing judge had plainly taken those matters into account, as reflected in the period of parole supervision built into the structure of the sentence.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • An error in the application of prior convictions as a statutory aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 does not automatically warrant resentencing if prior convictions remain a legitimate and powerful consideration under broader sentencing principles, including personal deterrence and community protection.
  • Where all sentences are directed to run concurrently despite a strong case for at least partial accumulation, that concurrency itself represents significant leniency and weighs against a finding of manifest excess.
  • Aggravating factors under s 21A(2) applied in this matter included the vulnerability of elderly victims, substantial emotional harm, and commission of the offence at night when residential occupation was likely.
  • A belated plea of guilty does not necessarily attract the same discount as an early plea, and the sentencing court may treat the timing of the plea as relevant to the weight given to it.
  • Subjective matters such as a difficult personal history and substance dependency, while relevant to sentencing, operate as contextual explanation rather than mitigation sufficient to override considerations of retribution, deterrence, and community protection in cases of serious, persistent offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1) and s 112(2) (break, enter and steal; aggravated form)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A (matters of aggravation and mitigation)

Cases:
- R v De Simoni (1981) 147 CLR 383
- R v Drew [2005] NSWCCA 384
- R v Ponfield (1999) 48 NSWLR 327
- R v Sutton [2004] NSWCCA 225