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Court of Criminal Appeal 18 April 2007

Leese v R

[2007] NSWCCA 108

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL WAS THIS AN IRRELEVANT CONSIDERATION.

Citation: Leese v R [2007] NSWCCA 108
Court: NSW Court of Criminal Appeal
Date: 18 April 2007
Judge(s): McClellan CJ at CL, Hoeben J, Hall J

Background

The applicant pleaded guilty, on the day his trial was due to commence, to one count of aggravated break, enter and intimidate. The offence arose after he learned that a family member had made a complaint to the Department of Community Services about him. He and a co-offender went to the complainant's home that evening, forced entry, threatened her partner and family, and refused repeated requests to leave. The co-offender also damaged a television set. The applicant instigated the incident but did not personally break down the door or damage the property.

The District Court sentenced the applicant to a total term of two years' imprisonment, comprising a non-parole period of one year commencing 9 August 2006 and a balance of term of one year. The sentencing judge found the offending carried "very considerable criminality," noted the applicant was on a good behaviour bond at the time, and applied a 25 per cent discount for the early guilty plea.

The applicant sought leave to appeal against the sentence in the Court of Criminal Appeal, challenging aspects of the sentencing judge's reasoning and contending the sentence was manifestly excessive.

  • Whether the sentencing judge's remark that "the community would be horrified to think that anything other than a full time custodial sentence would be appropriate" constituted reliance on an irrelevant consideration.
  • Whether the sentencing judge improperly conflated the applicant's role with that of the more culpable co-offender.
  • Whether the sentence imposed was manifestly excessive in all the circumstances.

Decision

On the "community horror" remark, Hoeben J held that no error was established. The phrase, read in context, was no more than a recognition that right-minded community members would regard the criminality of this offence as warranting denunciation through imprisonment. The reference to community attitudes was consistent with accepted sentencing principles, including the High Court's observation in Veen v The Queen (No 2) that community understanding is legitimately relevant to the assessment of criminal penalty.

On the question of conflation of roles, the Court found the sentencing judge had been careful throughout to differentiate the applicant's conduct from that of the co-offender. The judge acknowledged the applicant did not break down the door and was not responsible for the property damage. At the same time, the judge correctly identified that the applicant had instigated the incident, entered the premises, made threats, and refused to leave when asked.

On manifest excess, the Court found no error in the sentencing judge's reasoning process or exercise of discretion. The objective criminality was significant, the applicant was on a good behaviour bond at the time of the offence, and the standard non-parole period of five years was a relevant guidepost. None of the three grounds of appeal were made out.

The Court noted that the applicant's co-offender had not yet been sentenced, and that a parity argument might arise in future. In light of that, the applicant asked the Court to refuse leave without formally dismissing the appeal. The Court acceded to that course.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • A sentencing judge's reference to what "the community would be horrified" by does not automatically constitute reliance on an irrelevant consideration. The Court of Criminal Appeal confirmed that, read in context, such language may legitimately reflect the community's role in informing the denunciatory purpose of sentencing.
  • No error was established in the sentencing judge's approach to the applicant's lesser role in the offending. Careful differentiation of co-offenders' conduct throughout the remarks on sentence was sufficient to show the judge had not conflated their culpability.
  • Where grounds of appeal overlap substantially, a failure to establish error in the sentencing discretion on one ground will generally also dispose of a related manifest excess ground.
  • Refusing leave to appeal, rather than dismissing the appeal outright, was appropriate where a parity argument based on a co-offender's future sentencing remained a live possibility.
  • Under the standard non-parole period regime, the prescribed period continues to operate as a guidepost even when a sentencing court determines that the particular offence falls below the mid-range of objective seriousness.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 195(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A

Cases:
- R v Way (2004) 60 NSWLR 168
- R v Zamagias [2002] NSWCCA 17
- Veen v The Queen (No 2) (1987-88) 164 CLR 465