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Court of Criminal Appeal 24 July 2006

McCabe v Regina

[2006] NSWCCA 220

Also reported as 164 A Crim R 344
Theft & property
CRIMINAL LAW SENTENCING APPEAL AGAINST SEVERITY AGGRAVATING FACTORS NOT AN AGGRAVATING FACTOR SENTENCING

Citation: McCabe v Regina [2006] NSWCCA 220
Court: Court of Criminal Appeal, New South Wales
Date: 24 July 2006
Judge(s): Beazley JA; Simpson J; Rothman J

Background

The appellant was sentenced in the Drug Court of New South Wales (exercising District Court jurisdiction) on 8 March 2005 for a series of "break, enter and steal" offences charged on indictment. At the same time, the Drug Court also imposed final sentences in relation to earlier offences after the appellant's Drug Court programme was terminated. Those earlier sentences were the subject of a separate single-judge appeal.

The present appeal concerned only the sentences imposed for the break, enter and steal offences. The sentencing judge had taken into account several factors that the appellant challenged as errors, and had also handled the appellant's pre-sentence custody in a procedurally incorrect way.

The appellant sought leave to appeal against the severity of the sentences on three grounds: that the sentencing judge wrongly treated multiple victims as an aggravating factor, wrongly treated prior convictions as an aggravating factor, and failed to properly account for time already spent in custody before sentencing.

  • Whether the existence of multiple offences across a range of break, enter and steal incidents constituted "multiple victims" as an aggravating factor under the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether prior convictions were properly treated as an aggravating factor under that Act
  • Whether the sentencing judge correctly accounted for the appellant's pre-sentence custody in calculating the non-parole period
  • Whether the Court of Criminal Appeal could intervene to correct a discrete error in the non-parole period even where no other overall sentence was warranted in law

Decision

On multiple victims: The Court held that the "multiple victims" aggravating factor under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 requires multiple victims in relation to each individual offence. The fact that different offences involved different victims did not satisfy this requirement. Having multiple offences is not the same as having multiple victims within a single offence, and the sentencing judge erred in treating it as such.

On prior convictions: The Court confirmed that prior convictions are not automatically an aggravating factor. The list of potential aggravating factors in the Crimes (Sentencing Procedure) Act 1999 remains subject to the general rule of law under s 21A(4). Prior convictions only become an aggravating factor where particular circumstances are present, such as where they heighten the need for retribution, deterrence, or protection of the community. In this case, those circumstances were not satisfied.

On re-sentencing: Despite identifying two errors in the sentencing approach, the Court declined to re-sentence the appellant in full. Under the Criminal Appeal Act 1912 (NSW), the Court must be satisfied that some other sentence was warranted in law before substituting a new one. Given the seriousness of the offences and the appellant's criminal history, no lesser overall sentence was warranted.

On pre-sentence custody: The Court found that the correct approach for a sentencing judge, where an offender has served time in custody before sentence, is to backdate the commencement of the sentence to the date custody began. The sentencing judge instead deducted the pre-sentence period from the total sentence before calculating the non-parole period at 75 per cent, which was an error. This was a narrow and discrete error with a specific effect on the non-parole period, and the Court intervened to correct it alone, adjusting the commencement date of the non-parole period for the final offence accordingly.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • The non-parole period for the "break, enter and steal" offence of 27 September 2004 varied to two years and three months, commencing 22 March 2007, with the appellant eligible for parole on 21 June 2009

Key Takeaways

  • Under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999, "multiple victims" as an aggravating factor requires multiple victims in relation to a single offence; having multiple separate offences with different victims across a course of conduct does not satisfy the provision.
  • Prior convictions are not a free-standing aggravating factor under the Act. Section 21A(4) preserves the general rule of law, meaning prior convictions only aggravate a sentence where specific circumstances, such as an elevated need for deterrence or community protection, are made out.
  • Where pre-sentence custody has been served, the appropriate sentencing method is to backdate the commencement of the sentence, not to deduct the custody period from the head sentence before applying the statutory non-parole ratio. Applying the ratio to a reduced figure produces an arithmetically incorrect non-parole period.
  • The Court of Criminal Appeal may intervene to correct a discrete, narrow error affecting only the non-parole period even where it is not satisfied that any other overall sentence was warranted in law under the Criminal Appeal Act 1912 (NSW).
  • In sentencing for multiple offences dealt with together, it is not permissible to increase a sentence for one offence to compensate for what may appear to be a lenient sentence for another offence dealt with at the same time.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(1), 21A(2)(d), 21A(2)(j), 21A(2)(m), 21A(4), 33
- Crimes Act 1900 (NSW), s 112(1)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 5AF(3), 6(3)
- Drug Court Act 1988 (NSW), ss 12, 24

Cases:
- Bushara v The Queen [2006] NSWCCA 8
- Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455
- McCabe v Regina [2006] NSWCCA 160
- Pearce v The Queen (1998) 194 CLR 610
- R v Blair [2005] NSWCCA 78
- R v Burke [2002] NSWCCA 353
- R v McQueeney [2005] NSWCCA 168
- R v Newman and Simpson (2004) 145 A Crim R 361; [2004] NSWCCA 102
- R v Simpson (2001) 53 NSWLR 704
- R v Tadrosse [2005] NSWCCA 145
- R v Youkhana [2005] NSWCCA 231
- Ryan v The Queen (2001) 206 CLR 267