Citation: R v Joel TORY; R v Luke TORY [2006] NSWCCA 18
Court: NSW Court of Criminal Appeal
Date: 16 February 2006
Judge(s): Hunt AJA; Adams J; Latham J
Background
Two brothers pleaded guilty in the District Court to aggravated breaking and entering and committing a serious indictable offence, contrary to s 105A of the Crimes Act 1900. The offence carried a maximum of 20 years' imprisonment and a standard non-parole period of five years. The circumstances of aggravation included being armed with a golf putter, acting in company, using corporal violence, and knowing persons were present in the home.
The offence arose from a confrontation at the victim's residence. The brothers, accompanied by their father, forced entry into the home, pushed another occupant onto a chair, and struck the victim repeatedly with the golf putter, also pushing his head into a door architrave. The entire incident lasted approximately two minutes. The brothers then attended a police station voluntarily a few hours later, made admissions, and ultimately entered guilty pleas in both the Local and District Courts.
The District Court imposed two-year good behaviour bonds on each respondent, declining to impose any custodial sentence. The Crown appealed on the ground that those sentences were manifestly inadequate.
Legal Issues
- Whether the District Court's imposition of good behaviour bonds for an aggravated home invasion was manifestly inadequate.
- Whether the sentencing judge gave sufficient weight to the objective seriousness of the offences.
- Whether the sentencing judge properly engaged with the standard non-parole period rather than paying mere lip service to it.
- What weight should be given to positive good character and the offenders' motives (acting in perceived protection of a young family member) when sentencing for a serious home invasion offence.
- How the principle of double jeopardy, which applies in Crown appeals, should affect the sentences imposed on re-sentencing.
Decision
The Court of Criminal Appeal allowed the Crown appeal, finding the District Court's sentences manifestly inadequate. Adams J, delivering the principal judgment, held that while the respondents' subjective circumstances were genuinely exceptional, including positive good character, strong community ties, employment, and the protective motive behind the offending, those matters did not justify a non-custodial outcome entirely.
Latham J identified a specific error in the sentencing judge's approach to the standard non-parole period. The sentencing judge had referred to the standard non-parole period only in passing, at the beginning and end of the remarks on sentence, without ever assessing the objective gravity of the offence relative to a notional midrange case. Her Honour confirmed that paying mere lip service to the standard non-parole period is insufficient: a sentencing judge who departs markedly from that period must provide adequate reasons for doing so, even where a plea of guilty converts the period into a benchmark or checkpoint rather than a mandatory floor.
Hunt AJA agreed with the proposed orders but added an important qualification. In his Honour's view, custodial sentences without suspension would have been warranted at first instance, notwithstanding the respondents' exceptional subjective circumstances. The sentences were suspended on re-sentencing not because of those subjective circumstances alone, but because of the double jeopardy inherent in Crown appeals, which ordinarily requires this Court to impose sentences lower than those that should have been imposed at first instance.
Orders Made
- Orders made in the District Court quashed.
- Luke Tory: non-parole period of 7 months' imprisonment, balance of term of 7 months; sentence suspended.
- Joel Tory: non-parole period of 4 months' imprisonment, balance of term of 6 months; sentence suspended.
- Special circumstances justifying departure from the statutory non-parole period ratio: both respondents would be serving their first term of imprisonment.
Key Takeaways
- A sentencing judge must do more than mention the standard non-parole period in passing. Where the sentence departs markedly from that period, the judge is required to provide meaningful reasons for the departure, even in guilty plea matters where the period operates as a benchmark rather than a mandatory minimum.
- Positive good character and sympathetic motive can be given substantial weight in sentencing but do not, without more, justify the complete substitution of a custodial sentence with a good behaviour bond for a serious aggravated home invasion.
- In Crown appeals, the double jeopardy principle operates as a distinct sentencing consideration. The Court of Criminal Appeal confirmed that sentences imposed on a successful Crown appeal will ordinarily be lower than those that should have been imposed at first instance, specifically because the respondent faces the burden of being sentenced twice.
- The objective seriousness of an offence must be assessed by reference to a notional midrange case for that offence, not merely by a general observation that the offending had a "serious aspect." Failure to conduct that comparative assessment constitutes a specific and appealable error.
- Where exceptional subjective circumstances exist alongside a successful Crown appeal, the Court may give effect to both considerations, though Hunt AJA's concurrence makes clear they remain conceptually separate bases for moderation of sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) s 105A
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 12, 21A, 54B
Cases:
- Pellew v The Queen [2004] NSWCCA 434; 150 A Crim R 575
- R v Davis [2004] NSWCCA 319
- R v Elmir & Anor [2003] NSWCCA 192
- R v Thomson & Houlton (2000) 115 A Crim R 104
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- R v Mills [2005] NSWCCA 175
- R v Porteous [2005] NSWCCA 115