Citation: Lovell v R; Dominey v R [2006] NSWCCA 222
Court: NSW Court of Criminal Appeal
Date: 28 July 2006
Judge(s): McClellan CJ at CL, Johnson J, Latham J
Background
Two stepbrothers, the applicants, pleaded guilty to aggravated break, enter and commit a serious indictable offence (malicious damage to property) under s 112(2) of the Crimes Act 1900, and a separate charge of malicious damage to property under s 195(a). The offences arose from an incident in June 2004 in which the applicants forcibly entered the home of their acquaintance's mother, intending to cause damage as revenge for property damage done to one applicant's vehicle and for alleged unwanted advances made to their teenage sister.
During the break-in, the applicants caused significant destruction to the home using a fire extinguisher, damaging the front door, television, stereo, mirror and a window. The victim, who was present and confronted the applicants, was known to them. The applicants were sentenced in the Campbelltown District Court in August 2005 and sought leave to appeal, arguing the sentences were manifestly excessive and that the sentencing judge had made errors of principle.
Legal Issues
- Whether the sentencing judge erred by taking into account the guilty plea and its timing when assessing the objective seriousness of the s 112(2) offence (rather than treating the plea solely as a subjective mitigating factor).
- Where on the range of objective seriousness the s 112(2) offences fell, and what role the standard non-parole period of five years played in that assessment.
- Whether the motive for the offences was relevant to sentencing, and if so, how.
- Whether the sentences for the s 112(2) offence were manifestly excessive.
- Whether the sentences for the s 195(a) offence were manifestly excessive, given that the penalties imposed approached the maximum of five years.
Decision
The Court of Criminal Appeal found that the sentencing judge had made an error of principle by factoring in the guilty pleas and their timing when assessing the objective seriousness of the offences. Objective seriousness must be assessed by reference to the conduct itself, independent of the offender's subsequent conduct such as entering a plea. A plea of guilty is a subjective mitigating matter and belongs to a separate part of the sentencing analysis.
The Court assessed the s 112(2) offences as sitting below the midpoint of objective seriousness. While the break-in was deliberate and involved the use of a makeshift weapon (the fire extinguisher), the intended victims were property rather than persons, the victim was not physically harmed, and the motive, though not an excuse, provided some context. The standard non-parole period of five years applied as a reference point for offences of middle-range seriousness, and offences below the midpoint warranted a lesser non-parole period.
On the s 195(a) offences, the original sentences had been structured with a non-parole period and balance of term, producing a total that approached the five-year maximum. The Court found this was disproportionate to the objective seriousness of the malicious damage and quashed those sentences, substituting fixed terms instead.
The Court also had regard to the parity principle between the two applicants, acknowledging relevant differences in their subjective circumstances including prior criminal history and rehabilitation prospects.
Orders Made
For Dominey:
- Leave to appeal granted; appeal allowed.
- Sentences from the Campbelltown District Court (4 August 2005) quashed.
- s 112(2) offence: non-parole period of 2 years and 3 months from 26 July 2004; balance of term of 18 months from 26 October 2006.
- s 195(a) offence: fixed term of 18 months from 26 July 2004.
For Lovell:
- Leave to appeal granted; appeal allowed.
- Sentences from the Campbelltown District Court (4 August 2005) quashed.
- s 112(2) offence: non-parole period of 1 year and 9 months from 13 February 2005; balance of term of 1 year from 13 November 2006.
- s 195(a) offence: fixed term of 15 months from 13 February 2005.
Key Takeaways
- A sentencing court must assess objective seriousness by reference to the nature and circumstances of the offending conduct alone; a guilty plea and its timing are subjective mitigating factors that belong to a separate stage of the sentencing exercise and cannot inform the objective gravity assessment.
- The standard non-parole period under s 54B of the Crimes (Sentencing Procedure) Act 1999 operates as a legislative benchmark for offences at the midpoint of seriousness; offences assessed below that midpoint warrant a non-parole period shorter than the standard.
- Motive is a relevant sentencing consideration, not to excuse the offending, but as contextual background that may inform where the offence sits on the range of objective seriousness.
- Where a sentence for an offence approaches the statutory maximum, it requires justification commensurate with the most serious instances of that offence; the Court found no such justification for the s 195(a) sentences here.
- In sentencing co-offenders, the parity principle requires that differences in outcome be explained by genuine differences in objective or subjective circumstances between the individuals involved.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 195(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B
- Criminal Appeal Act 1912 (NSW)
Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Way (2004) 60 NSWLR 168
- R v Ponfield (1999) 48 NSWLR 327
- R v Davies [2004] NSWCCA 319
- R v AJP (2004) 150 A Crim R 575
- R v Stambolis [2006] NSWCCA 56
- R v Tory [2006] NSWCCA 18
- R v Rice (2004) 150 A Crim R 37
- R v Price [2005] NSWCCA 285
- R v Millar [2005] NSWCCA 202
- R v Huynh [2005] NSWCCA 220
- R v Ceissman [2004] NSWCCA 466
- R v Elmir [2003] NSWCCA 192
- Ibbs v The Queen (1987) 163 CLR 447
- Veen v The Queen (No. 2) (1987-1988) 164 CLR 465
- Pearce v The Queen (1998) 194 CLR 610