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6
Court of Criminal Appeal 25 November 2011

PAPWORTH v R

[2011] NSWCCA 253

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE USE OF FORM 1 OFFENCES PARITY WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: Papworth v R [2011] NSWCCA 253
Court: NSW Court of Criminal Appeal
Date: 25 November 2011
Judges: Whealy JA, Simpson J, Hoeben J (Hoeben J delivered the principal judgment)

Background

The appellant pleaded guilty in the District Court to two counts: entering a dwelling house in company with intent to intimidate, and stealing property from that dwelling. Both offences occurred on 17 November 2009 at Belmont, NSW. The victim, who was recovering from a knee injury and using crutches, was confronted by the appellant and a co-offender, subjected to threatening and aggressive conduct, physically assaulted, and then had his home ransacked while he fled the property.

The appellant was sentenced to a fixed term of 15 months for the theft count, followed by a sentence of two years (non-parole period) with a nine-month balance of term for the home invasion count. His aggregate sentence was three years imprisonment with a non-parole period of two years and three months. Two further offences were taken into account on a Form 1 document: a common assault committed on the same day as the primary offences, and a later intimidation of the victim at a bus stop in April 2010.

The appellant sought leave to appeal against the severity of his sentence on multiple grounds, including the treatment of the Form 1 offences, the refusal to find special circumstances, parity with his co-offender, and manifest excess.

  • Whether the sentencing judge erred by failing to have regard to the fact that the Form 1 offences could have been dealt with in the Local Court and would have attracted a lower maximum penalty
  • Whether the sentencing judge erred in refusing to find special circumstances justifying a departure from the statutory ratio between non-parole period and head sentence
  • Whether the appellant had a legitimate sense of grievance arising from the disparity between his sentence and that of his co-offender
  • Whether the sentence was manifestly excessive

Decision

Form 1 treatment: The Court rejected the argument that the sentencing judge was required to limit the weight given to Form 1 offences to the maximum penalties applicable in the Local Court. The Court confirmed that Form 1 matters inform the court about the overall criminality of an offender and about the seriousness of the principal offence, particularly as background and context. There is no rule that the notional penalty for a Form 1 offence must be capped at the Local Court's jurisdictional limit.

Special circumstances: The Court found no error in the sentencing judge's refusal to find special circumstances. The judge had expressly considered the question and was not satisfied that any factor justified extending the balance of term beyond the statutory ratio. The Court noted that special circumstances are not presumed simply because an offender will require supervision upon release, and the sentencing judge was entitled to reach the conclusion he did on the material before him.

Parity: The Court acknowledged that the appellant received a more substantial sentence than his co-offender, Baker. However, the difference was explained by material distinctions between the two offenders. The appellant had a significantly worse criminal history, was identified as the instigator of the offences, and had an additional Form 1 matter (the April 2010 intimidation) that Baker did not. The Court found no justified sense of grievance arising from the disparity.

Manifest excess: The Court rejected the submission that the sentence was manifestly excessive. Applying the principles from Hili v The Queen and related authorities, the Court noted that comparative case analysis has limited utility and that intervention is only warranted where the difference from other sentences indicates a misapplication of principle. The Court went further, observing that given the objective seriousness of the offending and the appellant's poor subjective case (including an extensive criminal history spanning decades, with numerous convictions for assault and domestic violence-related offences), the sentence could properly be regarded as lenient.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Form 1 offences are not capped at the Local Court's maximum penalty for sentencing purposes: they inform the court about the overall criminality of the offender and provide context for the principal offence, regardless of where the Form 1 matter could have been prosecuted.
  • In dismissing the special circumstances ground, the Court of Criminal Appeal confirmed that a sentencing judge exercises genuine discretion on this question, and an appellate court will not interfere simply because extended supervision might have been desirable.
  • A disparity in sentences between co-offenders does not automatically generate a justified sense of grievance: differences in criminal history, role in the offending, and the contents of each offender's Form 1 are all legitimate bases for differentiation.
  • Appellate intervention on manifest excess grounds is not warranted merely because comparative case analysis produces a different result; it requires a conclusion that the difference from other sentences reveals a misapplication of sentencing principle.
  • An extensive criminal history including repeated assaults and domestic violence-related offences over many decades significantly weakens the subjective case and can support a finding that even a substantial sentence is, in fact, lenient.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 111(2), 148
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Hili v The Queen [2010] HCA 45
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Veen v The Queen (No 2) (1987-88) 164 CLR 465
- Power v The Queen (1974) 131 CLR 623
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- R v El Hayek [2004] NSWCCA 25; 144 A Crim R 90
- R v Cramp [2004] NSWCCA 264
- Caristo v R [2011] NSWCCA 7
- Quayle v R [2010] NSWCCA 16
- Leese v Regina [2007] NSWCCA 108
- R v Morgan (1993) 70 A Crim R 368
- R v Silver (1999) NSWCCA 108
- Regina v Price [2005] NSWCCA 285
- R v Millar [2005] NSWCCA 202
- R v Palmer [2007] NSWCCA 308
- Regina v J Tory and L Tory [2006] NSWCCA 18