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14
Court of Criminal Appeal 12 July 2011

John HUNTER v R

[2011] NSWCCA 141

Assault & violenceTheft & propertyPublic order & justice offences
SENTENCING AGGRAVATED HOUSEBREAKING LARCENY OF MOTOR VEHICLE INTIMIDATION TO BE AVOIDED WHERE NO STANDARD NON PAROLE PERIOD

Citation: [2011] NSWCCA 141
Court: Court of Criminal Appeal, NSW
Date: 12 July 2011
Judge(s): Hodgson JA, Adams J, Hall J

Background

The appellant was sentenced in the District Court following a serious home invasion at a residential property in Rooty Hill in the early hours of 15 August 2008. He entered the home through an unlocked window and, armed with two screwdrivers, confronted two sleeping occupants. He threatened them with the screwdrivers, stole cash and car keys, and made explicit threats to return and harm them. He then drove away in the victims' vehicle, crashed it, and was later arrested after attempting to flee police on foot.

The appellant was convicted on four counts: aggravated break and enter and commit a serious indictable offence, taking and driving a conveyance without consent, and two counts of stalking or intimidating with intent to cause fear of physical or mental harm. He was also dealt with for driving while disqualified and negligent driving. The District Court imposed an effective overall sentence of five years, ten months and fifteen days, with an effective non-parole period of four years.

On appeal, the appellant challenged both the structure and length of his sentence. A further ground, added by consent at the hearing, alleged that the sentencing judge had failed to properly account for his mental illness.

  • Whether the sentencing judge erred in assessing the objective seriousness of the aggravated break and enter offence
  • Whether the sentences for the intimidation offences constituted double punishment, given that the intimidating conduct was also part of the factual basis for the aggravated break and enter charge
  • Whether the sentencing judge erred in making certain sentences cumulative rather than concurrent
  • Whether the sentencing judge failed to apply the totality principle correctly
  • Whether the ratio between the head sentence and the non-parole period adequately provided for a period of supervised rehabilitation
  • Whether the sentences were manifestly excessive
  • Whether the sentencing judge failed to properly consider the appellant's history of mental illness as a mitigating factor

Decision

The Court allowed the appeal on two principal grounds. First, Adams J (with Hall J agreeing) found that the sentencing judge had erred in treating the intimidating conduct as part of the factual matrix for the aggravated break and enter offence and then additionally imposing cumulative sentences for the separate intimidation counts. This amounted to double punishment for the same conduct. The intimidation offences should have been made concurrent with, not cumulative upon, the principal offence.

Second, the Court found a clear error in the sentencing judge's treatment of the appellant's mental illness. The sentencing judge had effectively disregarded the appellant's psychiatric history, including that he was not taking his medication at the time of the offences and had been under the influence of both alcohol and drugs. These were relevant mitigating factors that required proper engagement. Hodgson JA agreed that this error alone justified appellate intervention.

Adams J identified what he considered to be an error in the sentencing judge's approach to assessing objective seriousness. When the conduct founding the intimidation charges was properly excluded from consideration on the break and enter offence, the principal offence fell below the middle of the range of objective seriousness. Hodgson JA took a narrower view, noting the error was not sufficiently clear on its own to warrant intervention, but agreed the mental illness error was decisive.

On the question of the non-parole period, Adams J considered that the appellant's youth, mental health, drug dependency and evidence of emerging rehabilitation made a substantial period of supervised parole essential. The proposed restructured sentences produced a total effective head sentence of five years with a non-parole period that rendered the appellant immediately eligible for parole at the time of the appeal.

Orders Made

  • Leave to appeal granted
  • Count 2 (taking and driving without consent): sentence quashed; fixed term of 12 months imposed commencing 11 September 2008 and concluding 10 September 2009
  • Counts 3 and 4 (intimidation): sentences quashed; fixed terms of 12 months each imposed commencing 11 June 2009 and concluding 10 June 2010
  • Count 1 (aggravated break and enter): sentence quashed; non-parole period of one year and four months imposed commencing 11 March 2010 and ending 10 July 2011, with a balance of term of two years and two months expiring 10 September 2013
  • Sentences for driving offences under s 166 remained unchanged

Key Takeaways

  • A sentencing judge who uses conduct as an element of a more serious offence must not then impose additional cumulative sentences for separate charges arising from the same conduct; to do so constitutes double punishment.
  • The Court of Criminal Appeal confirmed that a history of mental illness, including failure to take prescribed medication at the time of offending, is a mitigating factor requiring genuine engagement in the sentencing process, not mere acknowledgment.
  • Hodgson JA noted that, while specifying ranges of objective seriousness can promote transparency in decision-making, this approach must not obscure the need for instinctive synthesis, and is of particular concern where no standard non-parole period applies to the offence.
  • Where a young offender presents with drug dependency, mental illness, and early signs of rehabilitation, the structure of a sentence, particularly the length of the parole period available for supervision, may be as significant as the head sentence itself.
  • No error was established in the making of some sentences cumulative rather than concurrent as a general principle; the error lay in the specific application of cumulation to conduct already punished through the principal offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including s 112(2)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 44

Cases
- Dunn v R [2010] NSWCCA 128
- Marshall v R [2007] NSWCCA 24
- R v AJP [2004] 150 A Crim R 575
- R v Huynh [2005] NSWCCA 220
- R v Ponfield & Ors [1999] NSWCCA 435; (1999) 48 NSWLR 327
- R v Way [2004] NSWLR 168
- Towers v R [2008] NSWCCA 283