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Court of Criminal Appeal 27 February 2007

Buadromo v R

[2007] NSWCCA 43

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING FIVE FORM 1 OFFENCES PLEAS OF GUILTY PRIOR CRIMINAL RECORD FINDING OF SPECIAL CIRCUMSTANCES

Citation: Buadromo v R [2007] NSWCCA 43
Court: NSW Court of Criminal Appeal
Date: 27 February 2007
Judges: McClellan CJ at CL, Simpson J, Buddin J

Background

The applicant pleaded guilty in the District Court to six serious offences committed between March 2002 and June 2003: two counts of aggravated break, enter and steal; two counts of aggravated steal and break out; one count of attempted robbery in company; and one count of aggravated attempted carjacking. Five further offences were taken into account on a Form 1. The offences involved breaking into occupied residential premises at night, stealing high-value motor vehicles, and participating in an attempted armed bank robbery before attempting to carjack a woman at knifepoint during the getaway.

The District Court sentenced the applicant to a total term of 11 years and 3 months, with a non-parole period of 8 years and 3 months, arrived at by accumulating the individual sentences. The sentencing judge made a finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, which allows a court to set a non-parole period that is less than the statutory default of three-quarters of the total sentence.

The applicant sought leave to appeal against the severity of the sentences. He raised no complaint about any individual sentence, focusing instead on the overall length resulting from accumulation and on the structural proportionality between the non-parole period and the total term.

  • Whether the overall sentence, arrived at by accumulating the individual sentences, was manifestly excessive having regard to the applicant's moral culpability and the relevance of his intellectual disability to general deterrence.
  • Whether the sentencing judge, having made a finding of special circumstances, correctly gave effect to that finding in structuring the sentences so that the non-parole period bore the appropriate proportion to the total term.

Decision

The Court of Criminal Appeal was not persuaded that the total sentence was manifestly excessive. The applicant's intellectual disability was raised as reducing the relevance of general deterrence, a recognised principle from cases including R v Champion and R v Engert. However, the Court found nothing in the sentencing judge's remarks to indicate that this factor had been overlooked or insufficiently weighed. The overall term of 11 years and 3 months was held to reflect the seriousness of the offending.

The Court did, however, identify a structural error. Once the sentencing judge made a finding of special circumstances, that finding had to be given real and consistent effect across the accumulated sentences. The resulting overall non-parole period of 8 years and 3 months did not properly reflect the special circumstances finding when measured against the total term of 11 years and 3 months. The purpose of a special circumstances finding is to extend the balance of term beyond the statutory default proportion, providing adequate time on parole for rehabilitation and reintegration.

To correct the error, the Court reduced the non-parole period on Count 5 (attempted robbery in company) from 2 years and 3 months to 1 year and 6 months. The Court acknowledged that this produced a non-parole period for Count 5 that appeared low relative to the gravity of that offence in isolation, and that on its face it sat uneasily with the principle in Pearce v The Queen. The Court considered this the only available mechanism to achieve a just overall result while keeping the total term unchanged at 11 years and 3 months, yielding an overall non-parole period of 7 years and 6 months and a balance of term of 3 years and 9 months.

Orders Made

  • Leave to appeal granted; appeal allowed.
  • Sentence imposed in respect of Count 5 (attempted robbery in company) quashed.
  • Applicant re-sentenced on Count 5 to imprisonment with a non-parole period of 1 year and 6 months, commencing 17 December 2009 and expiring 16 June 2011, with a balance of term of 3 years and 9 months, expiring 16 March 2015.

Key Takeaways

  • A finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 must be given genuine and consistent structural effect across accumulated sentences, not merely noted in the sentencing remarks.
  • Where accumulated sentences produce an overall non-parole period that does not reflect a special circumstances finding in its proportions, that constitutes a sentencing error even if each individual sentence is otherwise unimpeachable.
  • The Court of Criminal Appeal confirmed that intellectual disability reducing the relevance of general deterrence is a well-established principle, but its application depends on the sentencing judge's treatment of the evidence, and no error arises simply because the disability was raised.
  • Correcting a structural error in accumulated sentences may require adjusting the non-parole period on a single count in a way that appears disproportionate to that count's individual gravity. The Court of Criminal Appeal recognised this tension with Pearce v The Queen but accepted the adjustment as necessary to achieve a just overall result.
  • The total term of 11 years and 3 months was not disturbed, underscoring that the Court's intervention addressed the internal structure of the sentence rather than its overall length.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 154C(2), 344A
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 3, Part 4 Division 1A, s 44(2)

Cases:
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Champion (1992) 64 A Crim R 244
- R v Engert (1995) 84 A Crim R 67
- R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Wright (1997) 93 A Crim R 48