Citation: McDonald v Regina and Slater v Regina [2007] NSWCCA 50
Court: New South Wales Court of Criminal Appeal
Date: 1 March 2007
Judge(s): Sully J (principal judgment), Bell J, Hoeben J (both agreeing)
Background
Two co-offenders entered a family home in Glenthorne at around 4:00 am on 6 March 2005, armed with a length of timber and a hollow metal pipe. The homeowner woke and confronted them, and a violent struggle followed involving the homeowner, his two adult sons, and both intruders. The homeowner sustained multiple abrasions and bruising, and was struck on the head with the timber. Both offenders were identified and detained on the spot until police arrived.
Both applicants were charged jointly in the District Court at Taree with aggravated break and enter with intent to steal (s 113(2) of the Crimes Act 1900 (NSW), maximum 14 years) and assault in company occasioning actual bodily harm (s 59(2) of the Crimes Act 1900, maximum 7 years). Both pleaded guilty to both charges at an early stage.
The sentencing judge, Woods DCJ, imposed significant terms of imprisonment on each applicant. Both men then sought leave to appeal to the Court of Criminal Appeal, contending their sentences were manifestly excessive.
Legal Issues
- Whether the sentences imposed on each applicant were manifestly excessive, having regard to the objective seriousness of the offences, the relevant subjective factors, and the applicable sentencing statistics published by the Judicial Commission of NSW.
Decision
The Court of Criminal Appeal granted leave to appeal in each case but dismissed both appeals. Sully J, with Bell J and Hoeben J agreeing, found that the sentences were severe but not excessive in circumstances where each offence involved high objective criminality.
For the s 113(2) offence, McDonald received a non-parole period of 4 years and 6 months with a balance of term of 3 years. Slater received a non-parole period of 4 years and 1 month with a balance of term of 2 years and 8 months. Each received a concurrent fixed term of 2 years for the assault offence. The Court acknowledged both applicants had significant drug histories and backgrounds of deprivation, and that they had received appropriate discount for their early pleas.
Sully J accepted that the sentences were severe when measured against the Judicial Commission sentencing statistics, but emphasised that statistical comparisons serve only as broad indicators of range, not as determinative benchmarks. A sentence that is severe is not automatically excessive so as to warrant appellate intervention.
The Court also held that subjective matters, however compelling, cannot simply override objective criminality. Each applicant had a poor prior criminal record that made public protection a legitimate sentencing consideration. In those circumstances, the Court was not persuaded that a less severe sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912 (NSW).
Orders Made
For each application:
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- A sentence that is severe relative to published sentencing statistics is not, for that reason alone, manifestly excessive warranting appellate intervention.
- Judicial Commission sentencing statistics operate as broad indicators of range only; they do not define the permissible boundaries of a just sentence in any particular case.
- Where an offence involves high objective criminality, subjective mitigating factors (including drug dependency and childhood disadvantage) cannot simply displace the weight given to deterrence and public protection.
- In dismissing both appeals, the Court of Criminal Appeal confirmed that a home invasion conducted at night, in company, with weapons, against a sleeping family constitutes an offence of high objective seriousness justifying stern sentences.
- The test for appellate intervention on sentence under s 6(3) of the Criminal Appeal Act 1912 (NSW) is whether a less severe sentence "is warranted in law and should have been passed", and that threshold was not met on the facts of either case.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 113(2) (aggravated break and enter with intent to steal) and s 59(2) (assault in company occasioning actual bodily harm)
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
No specific cases were cited by name in the portions of the judgment provided.