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Court of Criminal Appeal 18 December 2007

KELLY v THE QUEEN

[2007] NSWCCA 357

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL FROM SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE PRINCIPLE OF PARSIMONY LEGITIMATE RANGE OF SENTENCES WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Kelly v The Queen [2007] NSWCCA 357
Court: NSW Court of Criminal Appeal
Date: 18 December 2007
Judge(s): Basten JA; Barr J; Adams J

Background

The appellant was sentenced in the District Court on 7 December 2006 following an incident on the evening of 19 July 2006 at a Lake Cathie property. The property had formerly been the matrimonial home but had been transferred to the appellant's former wife under Family Court consent orders following separation. The appellant had been attending to alcohol abuse treatment in the preceding years and had returned to the area in the months before the offence.

On the evening in question, the appellant borrowed a rifle from a friend, smashed the windows of a vehicle parked at the property, and then confronted his former wife at the front door while pointing the rifle at her. He subsequently entered the home and moved through it with the weapon pointed at occupants and others present. Police arrived and he was arrested without further incident.

The appellant pleaded guilty to breaking and entering a dwelling while armed and committing a serious indictable offence (intimidation), contrary to s 112(3) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years imprisonment and a standard non-parole period of seven years. He also pleaded guilty to malicious damage to property under s 195(a) of the same Act. At sentence, he received four years imprisonment with a non-parole period of two years for the primary offence, and three months concurrent for the malicious damage charge.

  • Whether the sentence imposed for the break-and-enter and intimidation offence was manifestly excessive within the meaning of s 6(3) of the Criminal Appeal Act 1912 (NSW).
  • Whether the correct meaning of "warranted in law" under s 6(3) encompasses a sentence amounting to no more than a one-year non-parole period on the facts of this case.
  • Whether identified subjective circumstances, including the absence of prior aggression and the appellant's history of alcohol abuse treatment, warranted greater leniency than the sentencing judge afforded.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Basten JA, with whom Barr J and Adams J agreed, found that the appellant had failed to establish any error in the sentencing process, and that it was impossible to say the sentence was excessive in all the circumstances.

The Court rejected the argument that a non-parole period of one year was the maximum warranted in law. The objective seriousness of the offence was significant. The appellant had armed himself with a loaded weapon, broken into the former matrimonial home, and moved through it pointing the gun at those present. The Court noted that even if the appellant's intention may not have extended to shooting anyone, the realistic perception of those present was that he might use the weapon in anger, and the possibility of injury or death fell within the range of likely outcomes that those present would have contemplated.

The Court also rejected arguments that the absence of evidence the gun was loaded, or that there was no attempt to fire it, materially diminished the gravity of the conduct. Those facts did not, in the Court's view, provide any warrant for interference with the sentence imposed.

On the subjective circumstances, the Court acknowledged the appellant's lack of any history of aggression and his prior attempts to address his alcohol abuse. The sentencing judge had given these matters weight. However, the Court observed that the psychological report was prepared in the cells over a single hour, and no further medical evidence or evidence from the appellant himself was before the sentencing judge, limiting the inferences available about his insight into his difficulties or the prospects of rehabilitation.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the absence of a stated intention to shoot and the absence of evidence that a weapon was loaded do not, of themselves, require a sentencing court to impose a substantially reduced sentence for armed break-and-enter with intimidation.
  • A sentence of four years imprisonment (non-parole period of two years) for an offence carrying a maximum of 25 years and a standard non-parole period of seven years was not manifestly excessive on these facts, where the objective seriousness was significant.
  • Where subjective circumstances such as alcohol dependency and absence of prior violence are before the sentencing court, those matters do not automatically warrant a reduction to a non-parole period of one year, particularly where the supporting evidence is limited in scope and depth.
  • The concept of a sentence "warranted in law" under s 6(3) of the Criminal Appeal Act 1912 (NSW) does not fix a ceiling sentence at the lowest plausible end of the range: the question is whether the sentence actually imposed falls within the legitimate range available to the sentencing judge.
  • Significant delay in filing an application for leave to appeal (here, more than eight months after sentence for a single ground) was noted by the Court, though it did not determine the outcome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 4, 112, 195
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules, r 3B
- Family Law Act 1975 (Cth)

Cases:
- DB v Regina [2007] NSWCCA 27
- House v The King (1936) 55 CLR 499
- Webb v O'Sullivan [1952] SASR 65