Citation: Scott Wallace Handley v R [2008] NSWCCA 5
Court: NSW Court of Criminal Appeal
Date: 30 January 2008
Judge(s): Hodgson JA, Kirby J, Buddin J
Background
The applicant, who appeared unrepresented by video-link, sought leave to appeal against sentences imposed in the District Court for a series of offences committed in May and June 2006. The offences included two counts of break and enter at private residences, a demand for property with menaces directed at his elderly mother, goods in custody, making a false statement to a pawnbroker (both taken into account on a Form 1), and taking and driving a conveyance. The applicant had been on parole for only three months, following an earlier break and enter sentence, when he committed the present offences.
The District Court sentenced the applicant to two separate four-year terms (each with a two-year non-parole period) for the break and enter offences. The second sentence was ordered to commence 12 months after the first, producing an effective total sentence of five years with a non-parole period of three years. The remaining sentences were ordered to run concurrently. The sentencing judge found remorse, applied a 25% discount for early guilty pleas, and found special circumstances to allow an extended parole period to assist with the applicant's drug dependency.
Legal Issues
- Whether the failure to obtain a pre-sentence report, despite one having been ordered, constituted an error warranting appellate intervention.
- Whether the sentences imposed, individually or in their overall effect, were manifestly excessive.
- Whether the sentencing judge erred in accumulating, rather than running concurrently, the sentences for the two break and enter offences.
Decision
On the pre-sentence report ground, the Court rejected the argument that the absence of such a report caused any prejudice. A comprehensive ten-page psychological report had been tendered, prepared at the instigation of the Legal Aid Commission. That report covered the applicant's background, drug history, medical and psychological history, mental state, and attitude to the offences. It was supplemented by the applicant's own evidence and a letter he wrote to the sentencing judge. The Court found it difficult to identify what additional assistance a pre-sentence report could have provided, and noted that no adjournment had been sought to obtain one.
On the manifest excess ground, the Court found no error. The applicant's core submission was that all sentences should have run concurrently. The Court noted that the applicant's own solicitor had properly conceded at first instance that some accumulation was warranted. The two break and enter offences were separate acts of criminality committed on different days involving different victims, and the Court saw no basis for wholly concurrent sentences.
The Court also rejected the overall manifest excess argument. It pointed to the serious nature of the offences, the applicant's extensive criminal history (stretching back to 1984 and including numerous similar convictions), the fact that he was on parole at the time, and the existing leniency built into the sentence structure through the concurrent terms. The special circumstances finding further reflected the sentencing judge's acknowledgment of the applicant's rehabilitation prospects.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- Where a detailed psychological report effectively covers the same ground as a pre-sentence report, the absence of a formal pre-sentence report will not warrant appellate intervention unless the applicant can demonstrate actual prejudice.
- Accumulation of sentences for separate break and enter offences committed on different days against different victims was appropriate, and a concession to that effect by defence counsel at first instance was described as "entirely proper."
- An applicant's stated motivation for pleading guilty (such as avoiding a contested hearing) is irrelevant provided there was a genuine acknowledgment of guilt.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that an extensive criminal history for similar offences, combined with offending on parole, are significant aggravating factors that justify a measure of personal deterrence in sentencing.
- A special circumstances finding, enabling an extended parole period, can appropriately reflect a sentencing court's recognition of an offender's ongoing drug dependency and rehabilitation needs.
Legislation and Cases Referenced
No specific legislation or cases were cited in the judgment text or metadata.