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Court of Criminal Appeal 16 December 2011

Burnett v R

[2011] NSWCCA 276

Theft & property
CRIMINAL LAW SENTENCE APPEAL SPECIAL CIRCUMSTANCES WHETHER SENTENCES MANIFESTLY EXCESSIVE.

Citation: Burnett v R [2011] NSWCCA 276
Court: NSW Court of Criminal Appeal
Date: 16 December 2011
Judges: Meagher JA, Hoeben J (primary reasons), Rothman J

Background

The applicant pleaded guilty in December 2009 to five break-enter-and-steal offences committed in late 2008 across residential and commercial premises in the Hawkesbury and Hills districts. Five further offences were taken into account on a Form 1 (a sentencing mechanism that allows additional offences to be considered without separate convictions being recorded). The stolen property included jewellery, electronics, and a quad bike, with individual hauls reaching up to $37,535.

The District Court sentenced the applicant in February 2010 to an effective overall sentence of five years and three months, with a non-parole period of just under four years commencing 17 April 2009. The applicant was 38 at sentencing and had an extensive criminal history for similar offending. He was on parole at the time the offences were committed.

The applicant sought leave to appeal on four grounds: that his mental illness was not properly considered, that sentences should have been backdated further, that special circumstances warranted an extended parole period, and that sentences on two counts were manifestly excessive.

  • Whether the sentencing judge gave adequate weight to the applicant's mental illness when imposing sentence
  • Whether the sentences ought to have been backdated to a date earlier than 17 April 2009, to account for time served on a parole breach
  • Whether special circumstances existed under the Crimes (Sentencing Procedure) Act 1999 to justify adjusting the ratio of non-parole period to head sentence
  • Whether the sentences on counts 2 and 5 were manifestly excessive

Decision

Mental illness: The Court accepted that the sentencing judge had before her a report from a Justice Health psychiatrist and a pre-sentence report. The applicant's mental health issues had been taken into account, including their potential relevance to rehabilitation. No error was demonstrated in her Honour's treatment of this material, and this ground was rejected.

Backdating: The applicant had been serving time in custody from an earlier parole revocation, and argued that his sentences for the new offences should have commenced from a date earlier than 17 April 2009. The Court found that the sentencing judge had turned her mind to the interaction between the parole revocation period and the new sentences, and that the commencement dates reflected a proper exercise of discretion. The applicant could not demonstrate error in the approach taken.

Special circumstances: The Court acknowledged that the overall structure of the sentences, including their overlapping fixed terms, produced a relatively short parole period. However, having regard to the applicant's criminal history and the other sentencing factors, the sentencing judge was not required to find special circumstances, and no appellable error was identified on this ground.

Manifest excess: Counts 2 and 5 involved the ransacking of occupied homes, with property losses of $37,535 and $30,000 respectively. The offences were committed while the applicant was on conditional liberty, against a backdrop of lengthy antecedents for similar conduct. Count 5 also had five additional offences on the Form 1, which legitimately increased the sentence for that count. Drawing on Holloway v Regina and El Masri, Ali v R, the Court emphasised that the critical question is whether the sentence was appropriate to the particular case, not whether it sat within a statistical range. The Court found the sentences reflected the objective seriousness and the applicant's culpability, and that error of the necessary kind had not been demonstrated.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence's appropriateness turns on the specific findings as to objective seriousness and the offender's culpability, rather than comparison with sentencing statistics from other cases.
  • Where a sentencing judge has demonstrably engaged with mental health material placed before the court, an appellate court will not substitute its own assessment merely because a different weight might have been given to that material.
  • The interaction between time served for a parole breach and the commencement of fresh sentences requires the sentencing court to exercise a considered discretion; the absence of explicit extended reasoning will not, on its own, establish error.
  • Form 1 offences taken into account at sentence legitimately increase the penalty for the count to which they attach, in accordance with the Attorney General's Application (No 1 of 2002) principle.
  • No error was established in declining to find special circumstances, where the applicant's extensive criminal history and the need for community protection and deterrence were prominent sentencing considerations.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(1), 113(1), 114(1)(b), 117, 154A(1)(a), 154F, 195(1)(a)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Holloway v Regina [2011] NSWCCA 23
- El Masri, Ali v R [2010] NSWCCA 196
- Muldrock v The Queen [2011] HCA 39
- Hili v R; Jones v R [2010] HCA 45
- Carroll v The Queen [2009] HCA 13
- Makarian v The Queen [2005] HCA 25
- House v The King [1936] HCA 40
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
- Arnold v R [2007] NSWCCA 188
- Benitez v R (2006) 160 A Crim R 166
- R v Callaghan [2006] NSWCCA 58
- R v Hemsley [2004] NSWCCA 228
- Cole v R [2010] NSWCCA 227
- Fogg v R [2011] NSWCCA 1
- Chandler v R [2008] NSWCCA 240
- Buddle v R [2006] NSWCCA 236
- R v Caristo [2011] NSWCCA 7