Citation: ST ALDER, Kevin Leslie v REGINA [2006] NSWCCA 287
Court: New South Wales Court of Criminal Appeal
Date: 5 September 2006
Judge(s): Giles JA; Sully J; Latham J
Background
The appellant pleaded guilty in the District Court to one count of maliciously destroying property by fire, an offence carrying a maximum penalty of 10 years imprisonment. A separate charge of maliciously damaging property was taken into account on a Form 1. The offending arose from a breakdown of a de facto relationship: in the early hours of 9 February 2003, the appellant broke into premises connected to his former partner and deliberately lit a fire, causing significant damage to the building.
Chief Judge Blanch of the District Court sentenced the appellant to a non-parole period of 2 years, with an additional term of 2 years, backdated to 26 October 2003 to account for nearly 2 years of pre-sentence custody. The appellant, who appeared in person before the Court of Criminal Appeal, challenged the sentence on two grounds.
Legal Issues
- Whether the sentencing judge imposed a sentence contrary to an earlier indication of the likely sentence given before the plea of guilty, and without reasons for departing from it
- Whether the sentence was manifestly excessive having regard to the early guilty plea, remorse, contrition, good behaviour in custody, community work, and the appellant's relationship with his children
Decision
On the indication ground, the Court examined two statements made by Blanch CJDC before sentencing. The first, made during a bail application on 7 July 2005, suggested the appellant should not spend any greater period in actual custody than he already had by the time of the then-anticipated October 2005 trial. The second, made on 15 August 2005 after the plea was entered, mentioned a sentence of 3 years with a 2-year non-parole period, but was expressly conditional on psychological material and the criminal record yet to be placed before the court.
Giles JA found no departure from either indication. The first statement concerned the non-parole period only, and the sentence as imposed was consistent with it. The second statement was made after the plea had already been entered, meaning the appellant could not have relied on it in deciding to plead guilty. In any event, the court was satisfied that the sentence ultimately imposed was not inconsistent with what had been foreshadowed.
On the manifest excess ground, the Court found that Blanch CJDC had properly considered all the mitigating factors raised by the appellant. The sentencing judge had granted the maximum discount for the early guilty plea, acknowledged significant contrition recorded in the psychological report, accepted the appellant's limited criminal history, and noted his strong attachment to his children. That attachment was, however, treated as a double-edged consideration, given evidence that the appellant's judgment was affected by it and that supervision on release was necessary to address that risk. No error in the exercise of the sentencing discretion was identified.
The Court also noted, without passing judgment on the merits, that the appellant had described a series of subsequent events including parole refusals and, on the day of the appeal hearing, arrest for breach of parole conditions. The Court of Criminal Appeal acknowledged those matters fell outside its jurisdiction but expressed that it was desirable for the appellant to obtain legal advice about any available remedies, and noted that the Crown Prosecutor had offered to assist in connecting him with a Public Defender.
Orders Made
- Leave to appeal against sentence granted
- Appeal dismissed
Key Takeaways
- A sentencing indication made during a bail application, framed in tentative and contingent terms, does not necessarily bind the sentencing judge if the sentence ultimately imposed is consistent with what was actually indicated.
- Where a post-plea indication of likely sentence is expressly conditional on material yet to be received, an appellant cannot ground an appeal in a claimed reliance on that indication as the basis for entering the plea.
- In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that a sentencing judge's recognition of mitigating factors, including early plea, remorse, and limited criminal history, will not be disturbed where those factors were genuinely considered and no error in the exercise of discretion is apparent.
- An appellant's strong emotional attachment to children can operate as a mitigating consideration and, simultaneously, as a factor supporting supervised release, depending on how that attachment bears on the offending.
- The Court of Criminal Appeal observed the limits of its own jurisdiction: matters arising from post-sentence parole decisions fall outside the scope of a sentence appeal and must be pursued in other forums.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 195(a) (maliciously damaging property, maximum 5 years)
- Crimes Act 1900 (NSW), s 195(b) (maliciously destroying property by fire, maximum 10 years)
Cases cited: No cases were cited in the provided text of the judgment.