Citation: Hillier v Director of Public Prosecutions (NSW) [2009] NSWCCA 312
Court: Court of Criminal Appeal, New South Wales
Date: 22 December 2009
Judges: Basten JA; RS Hulme J; Johnson J
Background
The applicant was caught attempting to break into a car at Seven Hills in October 2005. When interrupted by the vehicle's owners, a couple with a young child, he stabbed the father in the hand with a screwdriver and threatened the mother with the same implement. He was convicted of assault occasioning actual bodily harm in relation to the father, and pleaded guilty to assaulting the mother and damaging the motor vehicle.
The applicant was also sentenced for a break, enter and steal offence committed on 4 January 2007, which occurred while he was on parole. A further break, enter and steal offence from 7 February 2007 was included on a Form 1 (a mechanism under NSW sentencing law by which additional charges are formally taken into account when passing sentence on the principal offences, without separate conviction). The applicant had a lengthy prior criminal record.
At first instance, the sentencing judge in the District Court imposed a total non-parole period of six years with a balance of term of 18 months. The applicant challenged those sentences on appeal, arguing that the aggregate was manifestly excessive and that specific errors infected the sentencing exercise.
Legal Issues
- Whether an offender's antecedent criminal history, and the fact that offences were committed while on parole, are relevant to the objective seriousness of those offences
- Whether the degree of accumulation between the separate sentences was erroneous
- Whether special circumstances existed to justify varying the standard ratio between the non-parole period and the balance of term
- Whether the individual sentences, and their total effect, were manifestly excessive
Decision
On the role of criminal history and conditional liberty in sentencing, the majority (Basten JA and Johnson J) held that prior criminal history does not elevate the objective seriousness of an offence, and therefore cannot push a sentence beyond the upper limit appropriate to the offence itself. However, criminal history remains relevant within that range, particularly when assessing the weight to be given to personal deterrence. Hulme J agreed with the outcome but noted a tension between established Court of Criminal Appeal authority and certain statements from the High Court in Veen v The Queen (No 2), which he found difficult to fully reconcile.
On accumulation, all three judges agreed that substantial accumulation between the sentences was justified. The principal offences were entirely separate events involving discrete criminality, and no basis existed for treating them as sufficiently related to warrant concurrent sentences.
On special circumstances (the legal basis for extending the balance of term beyond the standard proportion), the majority held that the facts disclosed no firm basis for such a finding. The sentencing judge's failure to consider special circumstances was not, in the circumstances of this case, a demonstrated error.
The Court found that the sentences as imposed were, however, manifestly excessive when viewed in their totality. The Court granted leave to appeal, quashed the original sentences, and re-sentenced the applicant to reduced terms that better reflected the totality of the criminality involved while maintaining substantial accumulation.
Orders Made
- Leave to appeal granted in respect of the sentences for assault occasioning actual bodily harm and the break, enter and steal of 4 January 2007
- Both sentences quashed and the applicant re-sentenced as follows:
- Assault occasioning actual bodily harm (with Form 1 matter taken into account): non-parole period of 2 years and 3 months (12 May 2008 to 11 August 2010), balance of term of 9 months (12 August 2010 to 11 May 2011)
- Break, enter and steal: non-parole period of 3 years and 4 months (12 February 2010 to 11 June 2013), balance of term of 1 year and 2 months (12 June 2013 to 11 August 2014)
- The applicant's earliest parole eligibility date fixed at 11 June 2013
Key Takeaways
- Antecedent criminal history does not increase the objective seriousness of an offence or lift the ceiling on the available sentence, but it remains a legitimate consideration when determining where within the available range a sentence should fall, particularly regarding personal deterrence.
- Offending committed while on parole is similarly not treated as aggravating the objective seriousness of the offence, though it may weigh against the offender at the subjective level of the sentencing exercise.
- Where multiple offences involve wholly discrete acts of criminality, substantial accumulation of sentences is appropriate; concurrency requires some relationship or connection between the offences beyond their temporal proximity.
- No error is necessarily established simply because a sentencing judge fails to consider special circumstances; such a failure warrants intervention only where the primary facts clearly called for such a finding to be addressed.
- Upholding the totality principle does not mean courts will lightly interfere with sentences that are not wrong in principle: minor adjustments characterised as mere "tinkering" remain insufficient to justify appellate intervention.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 4, 59, 61, 111, 112, 113, 195
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 32, 33, 44, 54A
- Criminal Appeal Act 1912 (NSW), ss 6, 7
- Probation and Parole Act 1983 (NSW), s 20A
Key Cases:
- Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
- House v The King [1936] HCA 40; 55 CLR 499
- Engert (1995) 84 A Crim R 67
- R v AEM [2002] NSWCCA 58
- R v Knight (2005) 155 A Crim R 252
- R v Astill (No 2) (1992) 64 A Crim R 289
- Griffiths v The Queen [1989] HCA 39; 167 CLR 372
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321