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Court of Criminal Appeal 14 March 2005

R v Johnston

[2005] NSWCCA 80

Theft & property
SENTENCE SENTENCING DISCRETION REQUIRED TO BE RE EXERCISED APPROPRIATE SENTENCE AND NON PAROLE PERIOD.

Citation: R v Johnston [2005] NSWCCA 80
Court: NSW Court of Criminal Appeal
Date: 14 March 2005
Judge(s): Santow JA, Bell J, Howie J

Background

The appellant was convicted on four counts of break, enter and steal under the Crimes Act 1900, each carrying a maximum penalty of 14 years' imprisonment. He also admitted to six further offences, including larceny, receiving stolen property, and disposing of stolen property, which the sentencing judge took into account under s 33 of the Crimes (Sentencing Procedure) Act 1999. All offences were committed between June and December 1999, when the appellant was 21 years old and unemployed, with an amphetamine addiction.

The sentencing judge in the District Court imposed an aggregate term of five years' imprisonment with a non-parole period of three years and nine months. A 25% discount was applied for the utilitarian value of guilty pleas, but the judge declined to make a finding of special circumstances or contrition.

The appellant sought leave to appeal against the severity of the sentence, arguing that the sentencing judge had erred in two respects: first, in the treatment of contrition, and second, in the approach taken to special circumstances.

  • Whether the sentencing judge applied a wrong principle in declining to find that contrition existed, and whether this led to an inadequate discount being applied.
  • Whether the sentencing judge incorrectly approached the question of whether special circumstances existed, warranting a longer-than-standard period on parole (and a correspondingly shorter non-parole period).

Decision

The Court of Criminal Appeal granted leave to appeal and found that the sentencing judge had erred on both grounds, though the ultimate effect on the orders was limited.

On contrition, the Court found that there was evidence of genuine remorse in the ERISP (a police interview record) and in the pre-sentence report, and that the sentencing judge had applied a wrong principle in dismissing this material. However, the Court observed that contrition is ordinarily relevant to rehabilitation prospects and the appropriate head sentence, rather than operating as a separate basis for a larger guilty plea discount. As a result, the error on contrition did not of itself require the head sentence to be reduced.

On special circumstances, the Court found that the sentencing judge had taken an incorrect approach. Special circumstances, within the meaning of the sentencing legislation, allow a court to depart from the standard ratio between the non-parole period and the total sentence where particular factors warrant a longer period of supervision after release on parole. The Court identified the appellant's youth, his earlier emotional difficulties following his mother's death, and his progress toward addressing his drug problem as collectively constituting special circumstances.

Re-exercising the sentencing discretion, the Court declined to alter the five-year head sentence, given the significant aggravating factors: the offences were planned, committed while on conditional liberty (bail), involved a substantial criminal record including prior break and enter offences, and produced aggregate stolen property valued at over $20,000 from private homes. However, the Court reduced the overall non-parole period to three years by adjusting the non-parole period for count 3 alone, consistent with the approach in R v Pearce requiring each sentence to be determined individually before aggregation.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed with respect to sentences on counts 1, 2 and 4; those sentences confirmed.
  • Appeal allowed with respect to count 3: the head sentence was confirmed, but the non-parole period was quashed and substituted with a non-parole period of one year, commencing 8 November 2005 and expiring 7 November 2006, being the first date on which the appellant would be eligible for consideration for release on parole.

Key Takeaways

  • Evidence of contrition in a police interview (ERISP) and a pre-sentence report is capable of founding a finding of remorse; a sentencing judge who dismisses such material without adequate basis applies a wrong principle.
  • Contrition is generally relevant to rehabilitation prospects and the assessment of the head sentence, rather than functioning as an independent ground for increasing a guilty plea discount beyond its utilitarian value.
  • Where a sentencing error is established, the Court of Criminal Appeal will re-exercise the sentencing discretion afresh, weighing both aggravating and mitigating factors rather than simply substituting the lowest permissible sentence.
  • Special circumstances sufficient to justify a shorter non-parole period may be found where the offender is young, has experienced significant personal disruption, and demonstrates genuine progress in addressing a drug dependency, even where the objective seriousness of the offences is high.
  • Under R v Pearce, sentences must first be assessed individually for each offence before any totality or aggregation principle is applied; this approach governs how the Court of Criminal Appeal restructures sentences on re-exercise of discretion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 23, 33
- Criminal Appeal Act 1912 (NSW) s 5(1)(c)

Cases
- R v Fidow [2004] NSWCCA 172
- R v Pearce (1998) 194 CLR 610
- R v Ponfield & Ors (1999) 48 NSWLR 327
- R v Tolley [2004] NSWCCA 165