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Court of Criminal Appeal 17 November 2010

Kennedy v R

[2010] NSWCCA 260

Theft & propertyPublic order & justice offences
CRIMINAL LAW PARTICULAR OFFENCES PROPERTY OFFENCES AGGRAVATED BREAK, ENTER AND STEAL OTHER OFFENCES CRIMINAL LAW

Citation: Kennedy v R [2010] NSWCCA 260
Court: New South Wales Court of Criminal Appeal
Date: 17 November 2010
Judges: Simpson J (primary judgment), Fullerton J and R A Hulme J (agreeing)

Background

The applicant pleaded guilty in the Albury Local Court to ten charges and sought to have a further twelve offences taken into account on two Form 1 documents. The offences fell into two chronological groups: a series committed between January and August 2008, and a further set in October 2008, all in Albury.

The 2008 offences included multiple counts of aggravated break, enter and steal (each committed in company), three counts of recruiting children to carry out or assist in criminal activity, and a count of stealing firearms. The October 2008 group involved a further aggravated break, enter and steal and a count of knowingly dealing in the proceeds of crime (money laundering). In each break-and-enter, the applicant organised groups of juveniles to enter residential premises with him.

The matter was sentenced in the Wagga Wagga District Court by Freeman DCJ on 9 September 2009. The original aggregate sentence was 10 years and 6 months with a non-parole period of 7 years and 6 months. The applicant sought leave to appeal on several grounds relating to the sentencing process and the overall severity of the sentence.

  • Whether the sentencing judge failed to apply the principles in R v Fernando, which govern sentencing of Aboriginal offenders
  • Whether the sentencing judge failed to give effect to a finding of special circumstances when structuring the non-parole periods
  • Whether the individual sentences were manifestly excessive
  • Whether the aggregate sentence, produced by the extent of accumulation of individual sentences, was excessive having regard to the totality principle

Decision

The Court upheld the Fernando ground of appeal. The sentencing judge had failed to apply the principles from R v Fernando (1992) 76 A Crim R 58, which require a sentencing court to take into account relevant background factors when sentencing an Aboriginal offender. This error was established and the appeal was allowed on that basis, requiring resentencing.

On the special circumstances ground, the Court found no error. The applicant argued the sentencing judge had identified special circumstances but failed to give effect to that finding in setting the ratio between non-parole periods and head sentences. The Court rejected this contention, finding the structure of the sentences was not inconsistent with the finding made.

The Court also found that no individual sentence was manifestly excessive. Each fell within the discretionary range available to the sentencing judge and was otherwise an appropriate sentence in the terms required by Pearce v The Queen. However, the Court concluded that the overall aggregate sentence was excessive because the degree of accumulation of consecutive sentences had produced a total that exceeded what the totality principle permitted.

To correct this, the Court reduced the extent of accumulation between sentence groups rather than altering individual sentence lengths. The revised aggregate became 9 years with a non-parole period of 6 years, a reduction from the original 10 years and 6 months with a 7 years and 6 months non-parole period.

Orders Made

The applicant was resentenced on all ten counts as follows:

  • Count 1 (Aggravated break, enter and steal): Non-parole period of 2 years and 3 months from 15 October 2008, expiring 14 January 2011; balance of term of 9 months expiring 14 October 2011
  • Count 2 (Recruit child): Fixed term of 2 years from 15 October 2008, expiring 14 October 2010
  • Count 3 (Aggravated break, enter and steal plus Form 1 offences): Non-parole period of 3 years and 9 months from 15 October 2009, expiring 14 July 2013; balance of term of 11 months expiring 14 June 2014
  • Count 4 (Steal firearms): Non-parole period of 1 year and 8 months from 15 October 2009, expiring 14 June 2011; balance of term of 7 months expiring 14 January 2012
  • Count 5 (Recruit children): Fixed term of 2 years from 15 October 2009, expiring 14 October 2011
  • Count 6 (Aggravated break, enter and steal): Non-parole period of 1 year and 8 months from 15 October 2010, expiring 14 June 2012; balance of term of 7 months expiring 14 January 2013
  • Count 7 (Aggravated break, enter and steal): Non-parole period of 2 years and 3 months from 15 October 2011, expiring 14 January 2014; balance of term of 9 months expiring 14 October 2014
  • Count 8 (Recruit children): Fixed term of 2 years from 15 October 2011, expiring 14 October 2013
  • Count 9 (Aggravated break, enter and steal): Non-parole period of 2 years from 15 October 2012, expiring 14 October 2014; balance of term of 3 years expiring 14 October 2017
  • Count 10 (Money laundering): Fixed term of 1 year and 6 months from 15 October 2012, expiring 14 April 2014
  • Aggregate sentence: 9 years with a non-parole period of 6 years

Key Takeaways

  • The Court of Criminal Appeal confirmed that failure to apply the Fernando principles when sentencing an Aboriginal offender constitutes an identifiable sentencing error that will ground a successful appeal and require resentencing.
  • A finding of special circumstances does not automatically produce error if the resulting sentence structure is not demonstrably inconsistent with that finding; the absence of a strict mechanical adjustment will not, of itself, establish appellate error.
  • No individual sentence was manifestly excessive even where it was severe, provided each fell within the available discretionary range and satisfied the requirements in Pearce v The Queen for an appropriate sentence on each discrete count.
  • Where multiple sentences are accumulated, the totality principle requires the aggregate to remain proportionate to the overall criminality involved; excessive accumulation can produce an unlawful result even where each individual sentence is unimpeachable.
  • In correcting a totality error, the Court resolved the problem by reducing the degree of accumulation between sentence groups rather than disturbing the individual sentence lengths, which it had found to be appropriate.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including Pt 3 Div 3 and Div 4 Pt 1A
- Crimes Act 1900 (NSW), ss 112(2), 154D(1), 193B(2), 351A
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- R v Fernando (1992) 76 A Crim R 58
- Pearce v The Queen [2009] HCA 57; 194 CLR 610
- R v Morgan [2003] NSWCCA 230; 57 NSWLR 533
- R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740
- Clarke v R [2009] NSWCCA 49
- R v Hickey (NSWCCA, 27 September 1994, unreported)