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Court of Criminal Appeal 28 February 2011

Andrews v Regina

[2011] NSWCCA 24

Sexual offencesTheft & property
SENTENCE APPEAL SENTENCING WITHIN REASONABLE RANGE LEAVE GRANTED TO ACCOUNT FOR PRE SENTENCE CUSTODY PRE PRE

Citation: Andrews v Regina [2011] NSWCCA 24
Court: Court of Criminal Appeal, New South Wales
Date: 28 February 2011
Judge(s): Beazley JA, James J, Hall J

Background

The appellant pleaded guilty in the District Court at Penrith to one count of break, enter and commit a serious indictable offence (indecent assault) in circumstances of aggravation, specifically that the victim was known to be at home. The offence, under s 112(2) of the Crimes Act 1900, carries a maximum penalty of 20 years imprisonment and a standard non-parole period of five years.

The sentencing judge imposed a total term of five years imprisonment, comprising a non-parole period of two years and six months commencing 1 September 2009, followed by a parole period of equal length. The applicant had intellectual disability and poor impulse control, factors that featured in the sentencing remarks.

The applicant sought leave to appeal on two grounds: first, that the sentencing judge mischaracterised the role of intellectual disability and poor impulse control in assessing the objective seriousness of the offence; and second, that five days of pre-sentence custody had not been taken into account.

  • Whether the sentencing judge erred by treating the applicant's intellectual disability and poor impulse control as irrelevant to the objective seriousness of the offence, rather than as circumstances of the offence that could bear on that assessment.
  • Whether five days of pre-sentence custody, solely referrable to the subject offence, should have been credited against the sentence.

Decision

On the first ground, the Court examined two passages from the sentencing judge's remarks. In the first passage, her Honour stated that intellectual disability and poor impulse control were "not relevant to the evaluation of objective seriousness." The applicant relied on the Court of Criminal Appeal's decision in Regina v Way (2004) 60 NSWLR 168, which confirmed that intellectual disability can constitute a circumstance of the offence, not merely a personal circumstance of the offender, where it is causally connected to the commission of the offence.

However, the Court found that the sentencing judge's remarks, read as a whole, did not establish appellable error. A second passage in the sentencing remarks showed that her Honour had acknowledged the relevance of intellectual incapacity when addressing the standard non-parole period, the ratio of non-parole to parole period, and other s 21A factors. The Court concluded that, even if the first passage contained an imprecise statement of principle, the sentence ultimately imposed was within the range of reasonable sentences and no error affecting the outcome was established.

On the second ground, the Court accepted that five days of pre-sentence custody, from 9 March 2008 to 13 March 2008, was solely referrable to the subject offence and should have been credited. The Court found no basis to decline to allow that credit, and adjusted the commencement date of the sentence accordingly.

Orders Made

  • Leave to appeal granted.
  • The applicant re-sentenced to a non-parole period of 2 years and 6 months commencing 27 August 2009 and expiring 26 February 2012, with a parole period of 2 years and 6 months expiring 26 August 2014.
  • The appeal otherwise dismissed.

Key Takeaways

  • Under the principles affirmed in Regina v Way, intellectual disability can constitute a circumstance of the offence relevant to objective seriousness where it is causally connected to the commission of the offence, rather than being confined to the category of purely subjective or personal factors.
  • No error affecting the sentence was established where, despite an imprecise statement of principle in one passage of the sentencing remarks, the sentencing judge had regard to intellectual disability elsewhere in the remarks and imposed a sentence within the range open to her.
  • Pre-sentence custody that is solely referrable to the subject offence must be taken into account in sentencing, even where the issue was not expressly raised before the sentencing judge.
  • The Court of Criminal Appeal confirmed that leave to add a new ground addressing the pre-sentence custody point was appropriate in the circumstances, and corrected the commencement date to give effect to the five-day credit.
  • In dismissing the substantive sentence appeal, the Court reinforced that an imprecision in articulating a sentencing principle does not automatically establish appellable error where the overall sentence falls within a reasonable range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A, s 44

Cases:
- Regina v Way (2004) 60 NSWLR 168
- Regina v Newman & Simpson (2004) 145 A Crim R 361