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Court of Criminal Appeal 20 October 2010

Nicholas v R

[2010] NSWCCA 239

Assault & violenceTheft & property
CRIMINAL LAW PROPERTY OFFENCES CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE RANGE RANGE GRAVITY

Citation: Nicholas v R [2010] NSWCCA 239
Court: New South Wales Court of Criminal Appeal
Date: 20 October 2010
Judge(s): Simpson J (with Hall J and Garling J agreeing)

Background

The applicant pleaded guilty in the District Court to six offences arising from a series of break-ins between 2003 and 2009. The most serious offence relevant to this appeal occurred in March 2009, when the applicant entered a dwelling house in Centennial Park while the female owner was home, confronted her, attempted to have her open a safe, and fled with her handbag. In doing so he committed larceny and broke out of the premises while knowing another person was inside, constituting an offence under s 112(2) of the Crimes Act 1900.

The sentencing judge, Berman DCJ, imposed a head sentence of 6 years with a non-parole period of 2 years and 6 months for that offence, assessing its objective seriousness as above mid-range. The applicant sought leave to appeal against the severity of that sentence.

The applicant had a difficult personal history, including childhood trauma, a longstanding criminal record commencing at age 13, and a psychiatric diagnosis that his mental illness was causally connected to his offending.

  • Whether the sentencing judge erred by placing the objective seriousness of the aggravated break-out offence above the mid-range of gravity
  • Whether the applicant's mental illness, found to be causally connected to his offending, required a downward adjustment to the objective gravity assessment, in accordance with the principle in R v Way
  • Whether the head sentence of 6 years was disproportionate to the non-parole period of 2 years and 6 months, given the standard proportions under s 44 of the Crimes (Sentencing Procedure) Act 1999

Decision

The Court of Criminal Appeal found that the sentencing judge erred in assessing the objective seriousness of the s 112(2) offence as above mid-range. The Court reasoned that this offence, on the facts presented, was not capable of being assessed above the mid-range of gravity, particularly when considered alongside the related "take and detain" charge which involved the personal violence and carried a lower maximum penalty.

The Court also applied the principle from R v Way, which holds that a causal connection between an offender's mental illness and their offending is a relevant consideration when assessing objective gravity. The sentencing judge had found such a causal connection, but nonetheless assessed the offence above mid-range. The Court held that finding was inconsistent with the Way principle and contributed to the sentencing error.

A further basis for error was the disproportion between the head sentence and the non-parole period. Under the standard proportions in s 44 of the Crimes (Sentencing Procedure) Act, a non-parole period of 2 years and 6 months would ordinarily produce a head sentence of approximately 3 years and 4 months. A head sentence of 6 years produced a parole period of 3 years and 6 months, which the Court described as a "considerable disproportion."

The Crown did not contend that the non-parole period of 2 years and 6 months was itself in error. The Court substituted a head sentence of 4 years, retaining the non-parole period and adjusting the balance of term to 1 year and 6 months.

Orders Made

  • Leave granted to appeal against the sentence imposed for the offence of aggravated break out of premises; appeal allowed; original sentence quashed.
  • In lieu thereof, the applicant sentenced to imprisonment with a non-parole period of 2 years and 6 months, commencing 14 May 2012 and expiring 13 November 2014, and a balance of term of 1 year and 6 months, expiring 13 May 2016.

Key Takeaways

  • A finding that an offence under s 112(2) of the Crimes Act 1900 was above mid-range in objective seriousness was held to be erroneous on these facts, with the Court of Criminal Appeal confirming the offence was not capable of being assessed at that level.
  • Under the principle in R v Way, a causal connection between an offender's mental illness and their offending bears on the assessment of objective gravity, and a sentencing court must give effect to that connection when fixing the seriousness of the offence.
  • Disproportionate disparity between the head sentence and the non-parole period can itself constitute a sentencing error, independently of any other identified error.
  • Section 44 of the Crimes (Sentencing Procedure) Act 1999 establishes standard proportions (75% non-parole, 25% parole), and significant departures from those proportions require justification grounded in the particular circumstances.
  • In substituting the sentence, the Court of Criminal Appeal retained the non-parole period accepted by both parties as correct and reduced only the head sentence, bringing the balance of term into proportion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, 12, 44, Pt 4 Div 1A

Cases:
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383