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Court of Criminal Appeal 16 March 2006

REESE, David Robert v R

[2006] NSWCCA 421

Assault & violenceTheft & property
CRIMINAL LAW ASSAULT OCCASIONING ACTUAL BODILY HARM PLEA OF GUILTY SUBJECTIVE CIRCUMSTANCES RELEVANCE OF PRIOR RECORD WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: REESE, David Robert v R [2006] NSWCCA 421
Court: NSW Court of Criminal Appeal
Date: 16 March 2006
Judges: Sully J, Simpson J, Howie J

Background

The applicant pleaded guilty in the District Court to specially aggravated break, enter and steal, where the serious indictable offence committed during the break-in was assault occasioning actual bodily harm, and the circumstance of special aggravation was wounding. The offence occurred in the early hours of the morning at the home of an acquaintance. The applicant forced entry through a window, then attacked the victim with an industrial broom, breaking the handle and using the splintered shaft to wound the victim's head, which required four stitches.

At sentencing, Delaney DCJ noted the applicant's subjective circumstances, including a difficult upbringing, limited education, homelessness at the time of the offence, and drug and alcohol use on the night. The sentencing judge found the offence fell below the mid-range of objective seriousness and applied a 20 per cent discount for the guilty plea, imposing a total sentence of five and a half years with a non-parole period of three years.

The applicant sought leave to appeal against that sentence in the Court of Criminal Appeal, arguing both that the sentencing judge had improperly treated his criminal record as an aggravating factor, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by treating the applicant's prior criminal record as an aggravating factor, contrary to the principles in Veen (No 2) v The Queen
  • Whether the total sentence of five and a half years, with a three-year non-parole period, was manifestly excessive in all the circumstances

Decision

On the first ground, Simpson J found no error in the sentencing judge's treatment of the criminal record. Although the sentencing judge referred to the prior convictions in the context of aggravating features, he immediately qualified that reference by directing himself to the principles in Veen (No 2), which cautions against using prior convictions to increase a sentence beyond what is proportionate to the current offence. The Court of Criminal Appeal held the sentencing judge could not properly be taken to have treated the record as an impermissible aggravating feature.

On the second ground, the Court rejected the contention that the sentence was manifestly excessive. The offence was described as extremely serious, notwithstanding the finding that it fell below the mid-range of objective seriousness. The seven-year standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 served as the relevant benchmark. Simpson J noted that even accepting the submission that the starting point for the head sentence (before the guilty plea discount) was close to seven years, that did not make the resulting sentence manifestly excessive given the circumstances of the offending.

Simpson J also observed, in passing, that the sentencing judge's characterisation of the offence as below the mid-range of objective seriousness was itself a generous finding, given the ferocity of the attack on the victim.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's reference to an offender's prior convictions does not constitute impermissible aggravation where the judge simultaneously directs himself to the Veen (No 2) principle limiting the weight of prior record in sentencing.
  • The standard non-parole period prescribed by statute operates as a guidepost or benchmark, and sentencing courts must keep it in mind when determining the non-parole period, particularly for serious offences.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence can remain appropriate even where the offence is found to fall below the mid-range of objective seriousness, if the underlying conduct was nonetheless extremely serious.
  • A 20 per cent discount for a guilty plea does not, of itself, render an otherwise proportionate sentence manifestly excessive merely because the resulting starting point approaches the standard non-parole period.
  • Subjective circumstances such as homelessness, limited education, a dysfunctional upbringing, and drug dependency are relevant to sentencing, but they do not necessarily displace the weight of the objective circumstances of a violent and premeditated home invasion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(3) (specially aggravated break, enter and steal: maximum 25 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A (standard non-parole period of seven years for this offence)

Cases:
- Veen (No 2) v The Queen [1988] HCA 14; 164 CLR 465 (limits on using prior convictions to increase a sentence beyond what is proportionate to the current offence)