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Court of Criminal Appeal 3 May 2006

Michael Thomas HAWKINS v REGINA

[2006] NSWCCA 91

Fraud & dishonestyTheft & property
STEALING IN A DWELLING MAKING AND USING FALSE INSTRUMENTS FURTHER MATTERS ON FORM 1 WHETHER LESSER SENTENCE WARRANTED

Citation: Michael Thomas Hawkins v Regina [2006] NSWCCA 91
Court: New South Wales Court of Criminal Appeal
Date: 3 May 2006
Judge(s): Sully J, Hidden J, Hall J

Background

The applicant was sentenced in the District Court by Solomon DCJ following convictions for aggravated break, enter and steal, stealing in a dwelling, and making and using false instruments. A number of additional matters were taken into account on a Form 1. The offences involved elderly and vulnerable victims and were found to have been planned rather than opportunistic.

The applicant sought leave to appeal against the sentence on two grounds. First, that the sentencing judge erred in applying the aggravating factor under section 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which concerns offences involving multiple victims or a series of criminal acts. Second, that the sentencing judge failed to give sufficient effect to a finding of special circumstances in structuring the overall sentence.

The appeal was heard on 25 August 2005 and decided by majority, with Hidden J dissenting on the outcome.

  • Whether the sentencing judge correctly applied section 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 as an aggravating factor
  • Whether an error in applying that aggravating factor required the Court of Criminal Appeal to re-sentence to a lesser term
  • Whether the sentencing judge gave sufficient effect to the finding of special circumstances when structuring the non-parole period relative to the head sentence
  • Whether drug addiction reduces moral culpability and should operate as a mitigating factor in sentencing

Decision

All three judges agreed that the sentencing judge erred in his approach to section 21A(2)(m). That error was sufficient to enliven the Court's jurisdiction under section 6(3) of the Criminal Appeal Act 1912 to consider whether a lesser sentence was warranted in law. The majority (Sully J and Hall J) concluded, however, that no lesser sentence was warranted, and the appeal was therefore dismissed.

Sully J drew extensively on the guideline judgment in R v Henry (1999), particularly the observations of Spigelman CJ regarding drug addiction and moral culpability. The court reaffirmed that drug addiction does not lower an offender's moral culpability in any general sense. The decision to experiment with drugs, the desire to sustain a drug-induced state of wellbeing, and the failure to seek assistance for addiction were each characterised as moral choices attracting ordinary sentencing principles. General deterrence retains its full weight even where offences are committed to fund a drug addiction.

Hall J emphasised the gravity of the offending itself. The offences involved very elderly and vulnerable victims, a significant breach of trust, and planning on the part of the applicant. These features, in Hall J's view, meant the sentence imposed adequately reflected the objective seriousness of the conduct even after setting aside the error concerning section 21A(2)(m).

On the second ground, Hall J accepted that an effective non-parole period close to 75 per cent of the head sentence does not automatically constitute appealable error. The relevant inquiry is whether the overall sentencing structure gives effect to the sentencing judge's intention and allows sufficient time on parole for rehabilitation. The Court found the structure of the sentences adequately served both purposes, and dismissed this ground accordingly.

Orders Made

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

Key Takeaways

  • A demonstrated error in applying an aggravating factor under section 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 does not automatically produce a lesser sentence on appeal; the Court of Criminal Appeal must be satisfied that a lesser sentence is actually warranted in law before intervening.
  • The Court of Criminal Appeal confirmed, applying R v Henry, that drug addiction does not reduce an offender's moral culpability as a general proposition, and that general deterrence retains its full force in cases where offences are committed to fund an addiction.
  • Where multiple offences target elderly and vulnerable victims and involve planning, the objective seriousness of the offending can justify maintaining a sentence even after a sentencing error is established.
  • An effective non-parole period that approaches 75 per cent of the head sentence is not, without more, an error of law; the inquiry turns on whether the overall sentencing structure carries out the sentencing judge's intentions and provides adequate scope for rehabilitation on parole.
  • In dismissing the appeal by majority, the Court illustrated that sentencing errors will not always translate into resentencing, particularly where the gravity of the conduct supports the original outcome independently of the error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly section 21A(2)(m)
- Criminal Appeal Act 1912 (NSW), section 6(3)

Cases:
- R v Tadrosse [2005] NSWCCA 145
- R v Henry & Ors (1999) 46 NSWLR 346
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 137 A Crim R 180