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Court of Criminal Appeal 28 July 2011

Cohen v R

[2011] NSWCCA 165

Other
CRIMINAL LAW PROPERTY STOLEN ARSON EXTENSIVE DAMAGE CAUSED BY FIRE AT LIBERTY ON BAIL AT TIME OF OFFENCES RANGE OF OBJECTIVE GRAVITY

Citation: Cohen v R [2011] NSWCCA 165
Court: NSW Court of Criminal Appeal
Date: 28 July 2011
Judges: Allsop P; Simpson J; Buddin J

Background

The applicant, a 19-year-old Aboriginal man from Dubbo, broke into Buninyong Primary School with his 15-year-old brother on the night of 27 September 2009. He stole electronic equipment including data projectors, a laptop, and a camera. During the break-in, he cut himself and bled onto a classroom carpet. Concerned that the bloodstain could identify him, he lit a fire to destroy it.

The fire spread beyond his control and caused catastrophic damage. The affected building block was considered beyond repair, with estimated losses totalling between $2.35 million and $2.5 million. The school served a low socio-economic community, with 64 per cent of pupils being Aboriginal. Teachers lost personal and irreplaceable teaching resources, and the school principal described the impact as "soul destroying" for the entire school community.

The applicant surrendered to police four days later. He was sentenced in the District Court at Dubbo in September 2010 after pleading guilty to aggravated break, enter and commit a serious indictable offence (larceny) under s 112(2) of the Crimes Act 1900, and to intentionally causing damage to property by fire (arson) under s 195(1)(b). He sought leave to appeal against the severity of both sentences.

  • Whether the sentencing judge erred in characterising the aggravated break, enter and steal offence as falling in the mid-range of objective gravity.
  • Whether the objective seriousness assessment of the break-and-enter offence was impermissibly influenced by the greater seriousness of the arson offence.
  • Whether the sentencing judge failed to make appropriate allowance for special circumstances, specifically the applicant's age, background, and prospects for rehabilitation, in setting the non-parole period relative to the head sentence.

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in two respects. First, his Honour's assessment that the break-and-enter offence was in the mid-range of objective gravity appeared to have been influenced by the gravity of the arson, rather than being assessed independently on its own facts. Considered in isolation, the break-and-enter offence did not reach the mid-range: it involved the theft of property from a school, with no direct harm to persons and no planned violence.

Second, the sentencing judge failed to make adequate allowance for special circumstances justifying a departure from the standard statutory ratio between non-parole period and head sentence. The applicant's youth, his Aboriginal background, the disadvantage he had experienced, and his genuine steps toward rehabilitation while in custody all warranted a longer period on parole to facilitate rehabilitation. Simpson J noted that balancing the extreme seriousness of the arson against those personal factors had not been straightforward, but ultimately leaned in favour of rehabilitation.

The Court did not interfere with the four-year head sentence imposed for the arson offence, finding that sentence was not excessive. The error lay in the sentence for the break-and-enter offence and in the degree of accumulation applied. The Court re-sentenced the applicant on count 1, reducing both the head sentence and the non-parole period, and reducing the period of accumulation from one year to six months.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed in respect of count 1 (aggravated break, enter and steal).
  • Applicant re-sentenced as follows:
  • Count 2 (arson): 4 years' imprisonment, with a non-parole period of 2 years and 6 months commencing 21 July 2010, expiring 20 January 2013; balance of term of 1 year and 6 months, expiring 20 July 2014.
  • Count 1 (aggravated break, enter and steal): 4 years' imprisonment, with a non-parole period of 2 years commencing 21 January 2011, expiring 20 January 2013; balance of term of 2 years, expiring 20 January 2015.
  • Applicant eligible for release on parole on 20 January 2013.

Key Takeaways

  • Where an offender is sentenced for multiple offences of different objective seriousness, each offence must be assessed independently. Allowing the gravity of a more serious offence to inflate the assessment of a lesser one constitutes a sentencing error.

  • The Court of Criminal Appeal confirmed that the standard non-parole period for aggravated break, enter and steal under s 112(2) of the Crimes Act is a legislative guidepost for offences in the mid-range of objective gravity, and does not apply automatically without a proper independent assessment of where the particular offence sits.

  • Special circumstances justifying a departure from the standard non-parole period ratio can arise from a combination of factors including youth, cultural background, personal disadvantage, and demonstrated rehabilitation. The sentencing court must make explicit and adequate allowance for these matters.

  • In re-sentencing, the Court took into account affidavit evidence of the applicant's educational progress while in custody, treating this as a positive indicator with some, though modest, bearing on the revised sentences.

  • Upholding the head sentence for arson while reducing that for the break-and-enter, the Court demonstrated that appellate intervention will be targeted at the specific error identified, rather than resulting in a wholesale reduction across all counts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 105A, 112(2), 195(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Div 1A

Cases
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Huynh [2005] NSWCCA 220
- R v McDonald (unreported, 12 October 1998)
- R v Silver [1999] NSWCCA 108
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Way [2004] NSWCCA 131; 60 NSWLR 168