Citation: Garland v Regina [2009] NSWCCA 217
Court: New South Wales Court of Criminal Appeal
Date: 31 August 2009
Judge(s): McClellan CJ at CL, Howie J, McCallum J
Background
The applicant pleaded guilty in the Local Court to a series of offences involving raids on ticket-vending machines at railway stations across western Sydney. The offences included larceny, intentional or reckless destruction of property, and possession of safebreaking implements. The prosecution elected to have the matters dealt with on indictment in the District Court, given the applicant's lengthy criminal history and the fact that he committed the offences while on parole for earlier armed robbery convictions and, for most of the offences, while on bail.
The raids were brazen: the applicant and an accomplice attended multiple stations in the early hours wearing balaclavas and gloves, used crowbars, sledgehammers and screwdrivers to break into ticket machines, and stole thousands of dollars in cash while causing extensive damage to the machines. A further series of minor offences was also taken into account via two Form 1 documents.
After sentencing in the District Court in November 2008, the applicant sought leave to appeal, representing himself. He raised several grounds, including that he had not been properly represented at the sentencing hearing, that the sentence was manifestly excessive, and that insufficient credit had been given for various mitigating factors.
Legal Issues
- Whether the applicant was properly represented during the sentencing hearing
- Whether the overall sentence was manifestly excessive
- Whether the sentencing judge gave insufficient weight to "extra curial punishment" (that is, harm or punishment suffered by the offender outside the formal court process, such as assaults in custody)
- Whether the sentence should have been backdated to the date of arrest rather than the date of committal
- Whether a discount greater than 25% should have been applied for the early guilty plea
- Whether serving a sentence in protection (a segregated custody arrangement for safety reasons) warranted a shorter term
Decision
McCallum J, with whom McClellan CJ at CL agreed, rejected all grounds of appeal. On the representation ground, the Court found that the applicant's solicitor had competently prepared and run the sentencing proceedings, including calling the applicant to give evidence, tendering a psychological report, and raising all relevant mitigating factors. There was no basis to conclude the applicant had been inadequately represented.
On the question of extra curial punishment, the Court accepted that the sentencing judge had considered the matter but found no error in the weight given to it. Howie J went further, observing that the extra curial punishment was so minor relative to the seriousness of the offending that it warranted no weight at all.
The Court found no error in the refusal to backdate the sentence to the date of arrest. The applicant had been in custody on a parole revocation warrant from an earlier matter, and it was appropriate to commence the new sentences from the date of committal rather than the earlier arrest date. On the discount for the guilty plea, the 25% reduction applied by the sentencing judge was consistent with established authority for early pleas and no greater discount was warranted. The fact that the applicant was serving his sentence in protection did not automatically mandate a shorter term; the proper weight of that factor depends on the objective seriousness of the offences and the importance of deterrence.
Howie J was pointed in his assessment, noting that the sentencing remarks were "obviously infested with error" and the sentences so inadequate that a Crown appeal would likely have resulted in significantly increased penalties. Despite those criticisms of the reasoning below, the Court applied section 6(3) of the Criminal Appeal Act 1912, which allows an appeal to be dismissed even where error is established if no lesser sentence is warranted in law. In the Court's view, the applicant had received undeserved leniency and the appeal was dismissed.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence appeal will fail even where errors in the sentencing remarks are identified, if the resulting sentence is not excessive and no lesser sentence is warranted in law under section 6(3) of the Criminal Appeal Act 1912.
- Extra curial punishment is not automatically accorded weight as a mitigating factor; its significance must be proportionate to the seriousness of the underlying offending, and where the offending is serious, it may warrant little or no weight at all.
- A 25% discount for an early guilty plea was confirmed as appropriate in the circumstances and consistent with existing authority; no automatic entitlement to a higher discount arises merely because the plea was entered at the earliest opportunity.
- Serving a sentence in protection does not necessarily produce a shorter non-parole period. The weight of that consideration is qualified by the objective gravity of the offences and the importance of general and specific deterrence, as affirmed by reference to R v Ah-See [2004] NSWCCA 202.
- Sentencing in a lower court based on Local Court maximum penalties and Local Court statistics was irrelevant where the offending was too serious for that jurisdiction, demonstrating that the applicable sentencing range must reflect the actual forum in which the matter is determined.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 114(1)(b), 117, 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases
- Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145
- R v Ah-See [2004] NSWCCA 202
- Van Cuong Nguyen v R [2008] NSWCCA 322
- Yi Hong Puan v R [2000] NSWCCA 194