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Court of Criminal Appeal 21 June 2007

Gibbs v Regina

[2007] NSWCCA 171

Theft & property
CRIMINAL LAW SENTENCING BREAK ENTER AND STEAL PLEA OF GUILTY PRE SENTENCE RESIDENTIAL REHABILITATION

Citation: Gibbs v Regina [2007] NSWCCA 171
Court: NSW Court of Criminal Appeal
Date: 21 June 2007
Judge(s): Hodgson JA, Grove J, Simpson J

Background

The applicant pleaded guilty in the Wagga Wagga Local Court to one count of aggravated break, enter and steal committed in company, with a further similar offence taken into account on a Form 1. The principal offence involved entering occupied residential premises in the early hours of the morning with two juvenile co-offenders. A teenage occupant woke during the burglary but feigned sleep out of fear.

The applicant, aged 18 at the time of the offences, had a troubled background involving parental mental illness, domestic violence, alcohol abuse in the home, and periods in out-of-home care. Following his arrest and grant of bail, he voluntarily entered residential drug and alcohol rehabilitation, spending time at two separate facilities before his sentencing hearing.

On 29 September 2006, the District Court sentenced the applicant to a total term of two years and three months, comprising a non-parole period of 15 months and a balance of term of 12 months. The applicant sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the sentencing judge failed to give adequate weight to the applicant's period of pre-sentence residential rehabilitation
  • Whether the sentence was inconsistent with the outcome for a juvenile co-offender dealt with in the Children's Court, giving rise to a parity error
  • Whether the sentencing judge gave disproportionate weight to the applicant's breach of bail conditions (including travel in a stolen vehicle) on the eve of sentencing

Decision

The Court of Criminal Appeal found two errors in the sentencing process. First, the sentencing judge failed to adequately account for the applicant's significant pre-sentence rehabilitation. The applicant had spent approximately three weeks at O'Connor House and nine and a half weeks at the Orana Haven Aboriginal Corporation's residential rehabilitation programme, all prior to sentencing. This demonstrated a genuine attempt to address his substance abuse issues and was a relevant mitigating consideration.

Second, the court found the sentencing judge failed to take into account the manner in which a juvenile co-offender had been dealt with in the Children's Court. This gave rise to a parity issue. Where co-offenders receive markedly different sentences without adequate justification, an appellable error may arise.

The court rejected the argument that the sentencing judge had placed excessive weight on the bail breach. The applicant had breached his curfew condition and was travelling in a stolen vehicle shortly before sentencing, after the bail conditions had been brought to his attention during the sentencing hearing. The court accepted this conduct warranted strong condemnation and that the judge had been entitled to regard it as significantly undermining confidence in the applicant's prospects of compliance after sentencing.

Despite finding error on two grounds, the court declined to disturb the overall length of the sentence. It reduced only the non-parole period, from 15 months to 12 months, noting this produced a variation from the standard non-parole period ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • Leave to appeal granted
  • Original sentence quashed
  • In lieu, the applicant sentenced to imprisonment with a non-parole period of 12 months, commencing 16 September 2006 and expiring 15 September 2007
  • Balance of term of one year and three months, expiring 15 December 2008
  • Applicant to be released on parole at the expiration of the non-parole period on 15 September 2007

Key Takeaways

  • A sentencing court's failure to give adequate weight to pre-sentence residential rehabilitation, and failure to account for the more lenient treatment of a juvenile co-offender, each constituted appellable error in this case.
  • Parity principles are not confined to co-offenders sentenced in the same court. The Court of Criminal Appeal treated the Children's Court outcome for a co-offender as a relevant comparator when assessing consistency of sentencing.
  • Breach of bail conditions on the eve of sentencing, particularly where the offender was also travelling in a stolen vehicle, was found to be a legitimate and significant factor warranting strong condemnation, even where earlier compliance had been demonstrated.
  • Where multiple sentencing errors are established, the Court of Criminal Appeal may correct only part of the sentence. Here, the total term was left intact and only the non-parole period was reduced.
  • Under s 11 of the Crimes (Sentencing Procedure) Act 1999, sentencing courts have power to adjourn proceedings to allow an offender to demonstrate rehabilitation. An offender who undermines that process through further offending or bail breaches may forfeit the benefit of that opportunity.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 11, 44(2) and Pt 3, Div 3; Pt 4, Div 1A
- Crimes Act 1900 (NSW), s 112(2)

Cases:
- R v Colgan [1999] NSWCCA 292
- R v Govinden [1999] NSWCCA 118; 106 A Crim R 314
- R v Tran [2005] NSWCCA 35