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Court of Criminal Appeal 24 March 2006

Hoswell v R

[2006] NSWCCA 70

Theft & property
PLEA OF GUILTY BREAK, ENTER AND STEAL PRIOR CRIMINAL RECORD SUBJECTIVE CIRCUMSTANCES REMORSE PROSPECT OF REHABILITATION

Citation: Hoswell v R [2006] NSWCCA 70
Court: NSW Court of Criminal Appeal
Date: 24 March 2006
Judge(s): Spigelman CJ; Simpson J; Barr J

Background

The applicant pleaded guilty in the District Court to break, enter and steal, an offence carrying a maximum of 14 years' imprisonment under s 112(1) of the Crimes Act 1900. Shadbolt DCJ sentenced him to two years and eight months' imprisonment with a non-parole period of two years. The sentence was accumulated with an existing sentence already being served.

The applicant had an extensive criminal history dating back to 1993, consisting largely of theft and related offences. He had previously appeared before the Court of Criminal Appeal in 2000, on that occasion unrepresented, making submissions about rehabilitation that the earlier court found "encouraging." By 2005, he again presented a case based on being at a personal "crossroads."

The applicant sought leave to appeal on multiple grounds, arguing that the sentencing judge had failed to properly account for his guilty plea, had not adequately engaged with evidence of remorse and rehabilitation, had erred in finding no special circumstances, and had imposed a sentence that was manifestly excessive.

  • Whether the sentencing judge properly applied the utilitarian discount for an early guilty plea under s 22 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge adequately took into account evidence of remorse and prospects for rehabilitation
  • Whether the protective custody circumstances constituted special circumstances justifying an adjustment to the non-parole period under s 44
  • Whether the accumulation of sentences distorted the intended non-parole period proportion
  • Whether the overall sentence was manifestly excessive

Decision

Ground 1: Guilty plea and mitigating evidence. The judges divided on this ground. Simpson J found that the remarks on sentence did not demonstrate the guilty plea had been properly factored in, and that the rehabilitation evidence had not been adequately assessed. Spigelman CJ disagreed, noting the sentencing judge had referred to the guilty plea in the opening sentence of his remarks, immediately after the Crown had conceded the 25 percent utilitarian discount, and had expressly acknowledged reading the applicant's letter and supporting correspondence. The Chief Justice accepted, however, that the reasons were not adequate because the judge had not directly addressed the applicant's "crossroads" case.

Ground 1(c): Protective custody and special circumstances. Both the Chief Justice and Barr J held this ground failed. The sentencing judge had expressly considered and rejected protective custody as a basis for special circumstances, explaining that such circumstances were variable and unclear. Spigelman CJ concluded this demonstrated awareness of the issue, and that it would have informed other aspects of the sentencing exercise.

Ground 2: Accumulation and the s 44 proportion. Simpson J considered that the accumulation of sentences had inadvertently altered the non-parole period ratio the judge had expressly intended to maintain, constituting an error warranting correction. Spigelman CJ read the remarks differently, concluding the judge had intentionally varied the statutory proportion given the applicant's history of breaching parole, expressing the view that little or no parole was appropriate in the circumstances.

Ground 3: Manifest excess. All members of the Court rejected this ground. Having regard especially to the applicant's record, the sentence was held to be well within the available range. Spigelman CJ and Barr J went further, characterising the sentence as sitting at the bottom of the permissible range. The majority held that no lesser sentence was warranted in law, and accordingly the appeal was dismissed under s 6(3) of the Criminal Appeal Act 1912.

Orders Made

  • Leave to appeal granted (by majority)
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's mere reference to "all the material before me" is not, on its own, an adequate statement of reasons where the applicant has advanced a substantive mitigation case, such as a "crossroads" rehabilitation argument, that calls for direct engagement.
  • Under s 6(3) of the Criminal Appeal Act 1912, even where errors in sentencing reasons are identified, the Court of Criminal Appeal may dismiss an appeal if satisfied that no lesser sentence was warranted in law.
  • A prior criminal history of repeatedly breaking promises of rehabilitation is a legitimate basis for the sentencing court to treat current expressions of remorse and rehabilitation with scepticism, and to give substantial weight to personal deterrence.
  • Protective custody is not automatically a basis for finding special circumstances; Spigelman CJ confirmed that a sentencing judge may reject such a finding where custody arrangements are variable and unclear.
  • In cases of accumulation, care is required to ensure the effective sentence retains the non-parole period proportion the sentencing judge intended, though the majority here found no unintended error on the particular facts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22, 44
- Criminal Appeal Act 1912 (NSW), s 6(3), s 12(2)

Cases:
- R v Daley [2003] NSWCCA 109
- R v Hoswell [2000] NSWCCA 250
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Regina v Heikkinen [2006] NSWCCA 50