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Court of Criminal Appeal 2 September 2005

Regina v Lewis

[2005] NSWCCA 300

Theft & property
TWO MATTERS ON FORM 1 RELEVANCE OF STANDARD NON PAROLE PERIOD AFTER PLEA OF GUILTY SENTENCE PASSED BEFORE REGINA V WAY.

Citation: Regina v Lewis [2005] NSWCCA 300
Court: NSW Court of Criminal Appeal
Date: 2 September 2005
Judge(s): Grove J, Hidden J, Bell J

Background

The applicant pleaded guilty in the District Court at Bega to one charge of aggravated break, enter and steal under s 112(2) of the Crimes Act 1900, which carries a maximum sentence of twenty years imprisonment. The offence involved entering the home of an elderly retired couple while they slept, confronting one of them during the theft, and stealing cash and identification cards. Two further offences were taken into account on a Form 1: theft from an 85-year-old nursing home resident and shoplifting from a local gift shop.

The sentencing judge imposed a total sentence of four and a half years, with a non-parole period of two years and three months, commencing from the date of the applicant's arrest. In finding special circumstances, the judge reduced the non-parole period below the standard, noting the applicant's troubled background, significant drug dependency, history of abusive relationships, and the fact that this was her first term of imprisonment.

The applicant sought leave to appeal out of time against the severity of that sentence. The Crown did not oppose an extension of time.

  • Whether the sentencing judge fell into error by treating the standard non-parole period as a starting point, rather than as a benchmark or guidepost, when sentencing an offender who had pleaded guilty
  • Whether the sentence was excessive in all the circumstances, having regard to the objective gravity of the offence and the applicant's subjective case
  • Whether, if error was established, the Court of Criminal Appeal should exercise its discretion to re-sentence the applicant

Decision

The Court found that the sentencing judge had indeed erred by treating the standard non-parole period as a starting point, an approach inconsistent with the principles later articulated in R v Way (2004) 60 NSWLR 168. That case confirmed that standard non-parole periods are intended as reference points for mid-range offences decided after trial, not as starting points to dominate the sentencing exercise for offenders who have pleaded guilty. The sentencing judge, without the benefit of Way (which was decided several months later), structured the entire sentencing exercise around the standard non-parole period and expressly invoked s 54B of the Crimes (Sentencing Procedure) Act 1999 to explain the departure from it.

Having identified error, the Court considered whether to re-sentence. It declined to intervene. The principal offence remained serious: the applicant had entered an occupied home, was discovered by an elderly resident, and also committed offences against a nursing home resident. The applicant had a reasonably lengthy criminal record and, critically, committed the offences while subject to conditional liberty.

Although the Court acknowledged the applicant's difficult personal history and drug dependency with evident sympathy, it was not persuaded that any lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912. The sentence of four and a half years, with a non-parole period of two years and three months, was allowed to stand.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed, applying R v Way, that a standard non-parole period must operate as a reference point or benchmark when sentencing a person who has pleaded guilty, not as a starting point that dominates the sentencing exercise.
  • Where a sentencing judge structures the entire sentencing exercise around the standard non-parole period and uses s 54B of the Crimes (Sentencing Procedure) Act 1999 to justify departing downward from it, this constitutes identifiable error on appeal.
  • Establishing error does not automatically result in a lesser sentence: under s 6(3) of the Criminal Appeal Act 1912, the Court will re-sentence only if persuaded a lesser sentence is warranted in law on the facts as a whole.
  • In dismissing the appeal despite finding error, the Court weighed the applicant's favourable subjective circumstances against the objective seriousness of the offending, the criminal record, and the commission of offences while on conditional liberty.
  • A sentencing judge's failure to apply a principle not yet established at the time of sentencing may constitute error in retrospect, but will be treated as entirely understandable in the circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 105A(1)(f), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Way (2004) 60 NSWLR 168