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Court of Criminal Appeal 22 December 2008

Towers v R

[2008] NSWCCA 283

Assault & violenceTheft & property
CRIMINAL PRACTICE & PROCEDURE APPEAL AGAINST SENTENCE HOME INVASION AND ASSAULT MATTERS OF AGGRAVATION VULNERABILITY OF VICTIM VICTIMS IN EARLY 60'S

Citation: Towers v R [2008] NSWCCA 283
Court: NSW Court of Criminal Appeal
Date: 22 December 2008
Judge(s): Beazley JA, Kirby J, Hall J

Background

The appellant pleaded guilty in the District Court to aggravated break and enter with intent to steal, two counts of assault occasioning actual bodily harm, and receiving stolen goods. The break and enter and assaults arose from a single incident on 1 December 2005, during which the appellant entered the home of an elderly couple in Merewether and physically assaulted both victims when they confronted her. The receiving charge concerned a separate incident almost a year later.

Bennett DCJ sentenced the appellant to an aggregate term of 5 years and 6 months imprisonment, with a non-parole period of 2 years and 6 months. The sentences on the later offences were structured to run partly consecutively, producing a total term the appellant argued was manifestly excessive.

The appellant sought leave to appeal, raising several grounds, including that the sentencing judge had erred in treating matters of aggravation and in structuring the accumulation of sentences.

  • Whether the use of violence to aggravate the break and enter charge, combined with separate assault charges arising from the same conduct, constituted impermissible double punishment
  • Whether the victims' ages (early 60s) could properly be treated as a matter of aggravation on the basis of vulnerability
  • Whether the revocation of the appellant's parole warranted backdating the sentence
  • Whether the sentence should have been structured with concurrent rather than partly consecutive terms
  • Whether the overall sentence was manifestly excessive

Decision

The Court of Criminal Appeal granted leave and allowed the appeal, finding the original sentence manifestly excessive and restructuring the sentences to run concurrently.

On the question of double punishment, the Court examined whether using the same violence both to aggravate the break and enter offence and to found the separate assault charges amounted to punishing the appellant twice for the same conduct. The Court addressed this concern in its restructuring of the sentences, ultimately concluding that concurrent terms were appropriate given that counts 2, 3, and 4 all arose from the one episode and involved the same victims. The Court noted that concurrent sentences remained appropriate provided they adequately captured the overall criminality involved, including the fact that there were multiple victims, each of whom suffered injuries.

On victim vulnerability, the Court accepted that the ages of the victims (62 and 60 years) could be a relevant aggravating factor, though the weight given to this in the context of persons in their early 60s required careful consideration. The Court noted that the victims were not in the most advanced age bracket typically associated with heightened vulnerability.

Regarding Count 5 (receiving) and the Form 1 offences, the Court found a structural error in the original sentencing approach. Many of the Form 1 offences involved use of the stolen credit card and were therefore logically connected to Count 5, yet had been taken into account in the context of the more serious Count 2. The Court held this was illogical and undermined the case for accumulating the sentence on Count 5. In the circumstances, the sentence on Count 5 was made concurrent. The Court also noted an error in the sentencing remarks regarding the applicable maximum penalty for the receiving charge, concluding that the correct provision was s 189 (maximum 3 years), not s 188 (maximum 10 years), and that this had not materially affected the outcome.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Bennett DCJ quashed and replaced as follows:
  • Count 2 (taking into account Form 1 offences): non-parole period of 2 years commencing 19 July 2007, expiring 18 July 2009; additional term of 2 years and 6 months commencing 19 July 2009, expiring 18 January 2012
  • Counts 3 and 4: fixed term of 1 year each, commencing 19 July 2007, expiring 18 July 2008
  • Count 5: fixed term of 9 months commencing 19 July 2007, expiring 18 April 2008
  • Earliest parole eligibility date: 18 July 2009

Key Takeaways

  • Where multiple charges arise from a single criminal episode involving the same victims, concurrent sentences may be appropriate, provided the total term adequately reflects the full criminality involved, including injury to more than one victim.
  • A sentencing judge's decision to place Form 1 offences in the context of a particular head sentence should reflect a logical connection between those offences and the principal charge being sentenced; misallocating Form 1 offences to the wrong head sentence can distort the overall sentencing structure.
  • The Court of Criminal Appeal confirmed that victims in their early 60s may be treated as vulnerable for sentencing purposes, though age-based vulnerability is not a fixed category and its weight depends on the particular circumstances.
  • Under s 189 of the Crimes Act 1900, the maximum penalty for receiving stolen property in connection with a minor indictable offence is 3 years imprisonment, a materially lower ceiling than the 10-year maximum under s 188, which applies where the underlying stealing constitutes a serious indictable offence.
  • An error in a sentencing judge's identification of the applicable maximum penalty does not automatically require reassembly of the Court of Criminal Appeal if the error had no material effect on the sentence ultimately imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(1), 61, 112(2), 113(2), 117, 188, 189, 300(1), 300(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Correctional Centres Act 1952 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v Kerrie-Ellen Robyn Knight [2005] NSWCCA 253
- R v Wickham [2004] NSWCCA 193
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Lucy Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371
- Kokaua v Regina [2008] NSWCCA 111
- R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740
- Postiglione v The Queen [1997] HCA 26; (1996-1997) 189 CLR 295
- Callaghan v Regina [2006] NSWCCA 58; (2006) 160 A Crim R 145
- R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Osenkowski (1982) 30 SASR 212
- R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v MAK and MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
- Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41
- SGJ v R; KU v R [2008] NSWCCA 258