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Court of Criminal Appeal 10 September 2010

King v R

[2010] NSWCCA 202

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: King v R [2010] NSWCCA 202
Court: NSW Court of Criminal Appeal
Date: 10 September 2010
Judge(s): Basten JA, Hall J, Price J

Background

The appellant was sentenced in the District Court at Penrith on 17 December 2009 after pleading guilty to two counts: demanding property by menaces in company (contrary to s 99(2) of the Crimes Act 1900), and stealing from the person (contrary to s 94). Two additional offences were taken into account on a Form 1. All offences occurred on 31 October 2008 and involved the appellant approaching victims in public to steal mobile phones and cash, while associates were present.

The sentencing judge imposed a principal sentence of 2 years 9 months and 4 days, with a non-parole period of 2 years and 25 days. The judge declined to find special circumstances that would justify altering the statutory ratio between the non-parole period and the total term. The appellant received a 15 per cent utilitarian discount for her guilty pleas.

The appellant sought leave to appeal on two grounds: that the hardship faced by her mother and children amounted to special circumstances warranting a reduction in the non-parole period, and that the sentence was manifestly excessive.

  • Whether the hardship to the appellant's mother (who was undergoing cancer treatment) and to her children constituted "special circumstances" justifying a variation of the statutory ratio between the non-parole period and the total term of sentence.
  • Whether the overall sentence was manifestly excessive having regard to the objective circumstances of the offending and the applicable sentencing statistics from the Judicial Commission.

Decision

On the special circumstances ground, the Court found no error in the sentencing judge's refusal to vary the statutory ratio. The evidence showed that the appellant's mother was ill and experiencing difficulty caring for the children, but the Court was not persuaded this rose to the level required. The appellant's own evidence about her plans had shifted between hearings, and the factual basis for a special circumstances finding was not made out to the standard required.

The Court also noted a minor factual error by the sentencing judge, who had treated the Crown's concession of significant intoxication as extending to the first count when it did not. However, this error was not sufficient to undermine the sentence or warrant intervention.

On the question of manifest excess, the Court accepted that the statistics indicated the sentence was a stern one. However, the applicable test is not whether the sentence sits at the higher end of a range, but whether it falls outside the range legitimately available on the facts. The Court found the judge was entitled to weigh the aggravating factors, including that the offending occurred while the appellant was on bail, her significant criminal history, the need for specific deterrence, and the Form 1 offences. Those findings were all open to the judge, and the sentence was not outside the available range.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Family hardship, including a parent's serious illness and difficulty caring for children, does not automatically constitute special circumstances justifying a variation of the statutory sentencing ratio.
  • Statistical data from the Judicial Commission may indicate that a sentence is stern, but the determinative question remains whether the sentence falls outside the range legitimately available on the particular facts.
  • The Court of Criminal Appeal confirmed that offending on bail is a recognised aggravating factor that sentencing courts may weigh heavily.
  • A significant criminal history, combined with a pattern of reoffending while intoxicated, can justify emphasising specific deterrence even where the individual offences are not the most serious examples of their kind.
  • In dismissing the appeal, the Court treated the sentencing judge's minor error regarding the extent of the intoxication concession as inconsequential to the overall sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 94, 99(2), 527C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 37, 44(2)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Musgrove v R (2007) 167 A Crim R 424
- R v Cramp [2004] NSWCCA 264
- R v Edwards (1996) 90 A Crim R 510
- R v Grbin [2004] NSWCCA 220
- R v Murphy [2005] NSWCCA 182