Citation: Watts v Regina [2007] NSWCCA 153
Court: New South Wales Court of Criminal Appeal
Date: 14 June 2007
Judges: Giles JA, Hidden J, Harrison J
Background
The applicant was a 23-year-old man who pleaded guilty to 15 offences committed between September 2003 and January 2004, including 11 counts of break, enter and steal and three counts of break and enter with intent to steal. The court was also asked to take into account a further 22 offences on a Form 1 schedule (a procedural mechanism allowing additional offences to be considered when sentencing for a principal offence, without those additional offences being separately sentenced). The offences were dealt with by Judge Sides in the District Court on two separate sentencing occasions in April 2005 and May 2006.
The sentencing judge imposed a total effective sentence of 11 years with a non-parole period of 7 years. The heaviest individual component was the sentence on Count 2 of the indictment, which attracted a non-parole period of 4 years and a total term of 8 years, commencing on 8 January 2007. This sentence incorporated the 22 Form 1 matters.
The applicant sought leave to appeal against sentence, also requiring an extension of time. The extension was not opposed, the delay having been explained on the basis that the applicant wished to wait until all sentencing proceedings were finalised before appealing.
Legal Issues
- Whether an extension of time to apply for leave to appeal should be granted.
- Whether the total effective sentence, and in particular the sentence on Count 2 taking into account the Form 1 offences, was manifestly excessive.
- Whether the applicant's age, intellectual functioning, background, and prospects for rehabilitation were given sufficient weight in the sentencing exercise.
- Whether the increase in penalty attributable to the Form 1 offences was within the permissible range.
Decision
The Court of Criminal Appeal unanimously held that the sentence on Count 2 was manifestly excessive and quashed it. All three judges agreed on the outcome, though Giles JA delivered separate reasons that differed slightly from those of Harrison J.
On the Form 1 question, Giles JA explained that when taking other offences into account under a Form 1, the focus must remain on sentencing for the primary offence. The increase in penalty is driven by giving greater weight to personal deterrence and the community's entitlement to retribution for the additional offences, but the large number of Form 1 offences does not justify a commensurate arithmetic increase in penalty. The increase of approximately 4 years and 4 months over the base sentence of 3 years and 8 months was, in his Honour's view, a very great increase that was not justified by the Form 1 matters alone.
Harrison J also found that the sentence failed properly to balance the combination of circumstances that had influenced the applicant's offending. The applicant was 23 at the time of the offences, had intellectual functioning in the low-average range, a troubled background, and had shown some contrition. While the sentencing judge acknowledged qualified hope for rehabilitation and found special circumstances arising from the risk of institutionalisation, the Court of Criminal Appeal considered that these factors called for a tempering of the sentence's length. Imposing a cumulative 8-year term, commencing three years after the earliest sentence, was found to be a severe response that fell outside the available sentencing range.
The court re-sentenced the applicant on Count 2 to a non-parole period of 3 years and a total term of 5 years, commencing 8 January 2007. This produced an effective overall sentence of 8 years with a non-parole period of 6 years, leaving the applicant eligible for parole on 7 January 2010.
Orders Made
- The time to apply for leave to appeal was extended to 16 February 2007.
- The sentence imposed on Count 2 of the indictment was quashed and replaced with a non-parole period of 3 years and a total term of 5 years, commencing 8 January 2007. The applicant became eligible for release on parole on 7 January 2010.
Key Takeaways
- When sentencing for a principal offence and taking additional offences into account on a Form 1, the sentencing court must keep the focus on the primary offence. The sheer number of Form 1 matters does not justify a proportionally larger arithmetic increase in penalty.
- A sentence may be manifestly excessive where it fails to properly balance mitigating personal circumstances, even where an offender has a poor criminal history and a large number of offences on their record.
- An offender's age at the time of offending, intellectual functioning, and realistic prospects for rehabilitation are relevant sentencing considerations. Where there is qualified hope for the future, a lengthy cumulative sentence calls for careful tempering.
- The Court of Criminal Appeal confirmed that appellate courts are cautious about intervening in sentences imposed at first instance, but will do so where the sentence falls outside the range open to the sentencing judge.
- Special circumstances findings (which allow adjustment of the ratio between non-parole period and total sentence) were adopted by the Court of Criminal Appeal on re-sentencing, reflecting the risk of the applicant becoming institutionalised by a lengthy term.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 112(1), 113(1), 195
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146
- In the matter of the Attorney General's Application (No 1) under s 26 of the Criminal Appeal Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435
- R v Danuca [2005] NSWCCA 45
- R v Johnson [1999] NSWCCA 431
- R v Lay [2006] NSWCCA 45
- R v Simpson (2001) 53 NSWLR 704