Citation: NEWBURN Ronald Neville v R [2008] NSWCCA 57
Court: NSW Court of Criminal Appeal
Date: 14 March 2008
Judge(s): McClellan CJ at CL, Hulme J, Mathews AJ
Background
The appellant was a man then aged nearly 25 with an extensive criminal history dating back to the Children's Court in 2000. He pleaded guilty in the Newcastle District Court to three charges: maliciously damaging property by fire, and two counts of aggravated break, enter and commit a serious indictable offence (stealing). A further ten offences were taken into account on a Form 1 document (a procedure by which related offences are formally considered at sentencing without separate convictions being recorded).
The offences were committed in February and March 2006. They included burning a stolen vehicle to destroy evidence, breaking into an occupied family home while the occupants slept, and breaking into a unit where three men were asleep. The appellant was arrested on 31 March 2006 and was on a bond at the time of the offending.
Judge Coolahan in the District Court imposed an effective overall sentence with a non-parole period of 3 years and 9 months, commencing 31 July 2006, and an additional term of 2 years and 7 months. The appellant sought leave to appeal, contending the sentences were excessive.
Legal Issues
- Whether the sentencing judge's starting points, and the sentences ultimately imposed after applying a 40% guilty plea discount, were excessive given the circumstances of the offending.
- Whether the sentencing judge erred in his approach to pre-sentence custody, specifically by failing to apply the totality principle when determining the commencement dates for the sentences.
Decision
On the first ground, the Court of Criminal Appeal found no error. Mathews AJ, with whom McClellan CJ at CL and Hulme J agreed, held that the sentencing judge's starting points were within the available range and were, in her view, eminently reasonable. The sentences ultimately imposed after the 40% discount were also found to be appropriate.
On the second ground, the Court accepted the Crown's submission that Judge Coolahan had taken totality into account. The sentences imposed were ordered to commence on 31 July 2006, four months after the appellant entered custody, making them partially concurrent with separate Local Court sentences that had been imposed for unrelated matters. No error in the judge's approach to the commencement dates was identified.
Hulme J added remarks emphasising the protection of society as a legitimate sentencing purpose, noting the appellant had received numerous non-custodial disposals across his history and that the community could not reasonably be expected to accept continued offending of this nature.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- No error was established in the sentencing judge's approach, either in setting starting points before discount or in the sentences ultimately imposed after a 40% guilty plea reduction.
- A sentencing court's decision to make sentences partially concurrent with pre-existing sentences can reflect proper application of the totality principle, even where that concurrency is not explicitly labelled as such.
- The Court of Criminal Appeal confirmed that protection of society and specific deterrence carry significant weight when an offender has a substantial criminal record and has previously received multiple non-custodial sentences.
- Under the sentencing framework considered here, a history of probation orders, bonds, and rising-of-the-court sentences does not preclude, and may actively support, the imposition of substantial custodial terms for serious subsequent offending.
- In dismissing the appeal, the Court signalled that sentences below the standard non-parole period for the relevant offences are not automatically vulnerable to challenge as excessive, provided the sentencing judge has engaged with all relevant matters in a comprehensive reasons for sentence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 112(2), 195(1)(b)
Cases
- R v Ellis (1986) 6 NSWLR 603
- Veen v R [No 2] (1987-1988) 164 CLR 465