AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 16 December 2011

Brennan v R

[2011] NSWCCA 278

Assault & violenceTheft & property

Citation: Brennan v R [2011] NSWCCA 278
Court: NSW Court of Criminal Appeal
Date: 16 December 2011
Judge(s): Whealy JA, Simpson J, Hislop J

Background

The applicant pleaded guilty to two counts on indictment: aggravated break and enter with intimidation of an occupant (contrary to s 112(2) of the Crimes Act 1900), and attempted theft of a motor vehicle. The offences arose from a late-night incident in Port Macquarie in November 2009, during which the applicant forced his way into a dwelling, intimidated the occupants, and attempted to hot-wire a car belonging to an acquaintance. Four additional offences (including assault occasioning actual bodily harm and reckless damage) were taken into account on a Form 1.

At sentencing, the court imposed a non-parole period of four years and two months on Count 1 and 12 months on Count 2. The sentencing judge referred to the standard non-parole period for Count 1 as seven years when, in fact, the correct figure prescribed by statute was five years. The Crown conceded at sentencing that this figure had been incorrect.

The applicant sought leave to appeal the sentence on Count 1, arguing that the sentencing judge had used an inflated benchmark as a guidepost, resulting in a materially higher sentence than was appropriate.

  • Whether the sentencing judge's use of an incorrect standard non-parole period (seven years instead of the statutory five years) constituted a material error warranting appellate intervention.
  • If so, what the appropriate sentence on Count 1 should be upon re-sentencing.

Decision

The Court of Criminal Appeal granted leave to appeal and accepted that the error was material. The Crown did not oppose the application. The Court applied the reasoning in Kershaw v R [2009] NSWCCA 19, which held that where a sentencing judge uses an inflated standard non-parole period as a benchmark, it must be concluded that the correct, lower figure would have produced a lesser sentence to some extent.

The Court then re-sentenced the applicant on Count 1. Hislop J noted the applicant's deeply troubled background, including a childhood in State care, a history of substance abuse, and an extensive criminal record dating back to 1996 that included multiple offences of violence and dishonesty. Despite those mitigating personal circumstances, the Court agreed with the sentencing judge that a lengthy term of imprisonment was necessary for general and specific deterrence.

A limited discount was applied for the late pleas of guilty. The Court found no special circumstances warranting an adjustment to the statutory ratio between the non-parole period and the balance of term. The sentence on Count 2 was affirmed without alteration.

Orders Made

  • Leave to appeal granted in respect of the sentence on Count 1.
  • Sentence on Count 1 quashed.
  • Applicant re-sentenced on Count 1 to a non-parole period of three years and six months commencing 26 March 2010 and expiring 25 September 2013, with a balance of term of 14 months commencing 26 September 2013 and expiring 25 November 2014.
  • Sentence on Count 2 affirmed.

Key Takeaways

  • Applying an incorrect (inflated) standard non-parole period as a sentencing guidepost constitutes a material error, even where the resulting sentence falls below that incorrect benchmark.
  • The Court of Criminal Appeal confirmed the principle from Kershaw v R that it cannot be assumed the error had no effect: where the benchmark used was higher than the statutory figure, the correct figure would have produced a lesser outcome to some extent.
  • Under s 112(2) of the Crimes Act 1900, the standard non-parole period for aggravated break and enter with intimidation of an occupant is five years (not seven years as the sentencing judge was incorrectly advised).
  • A limited discount for guilty pleas remains available even where pleas are entered late, but the discount will be constrained by the lateness of the plea.
  • Significant mitigating personal circumstances, including a deprived upbringing and entrenched substance abuse, do not necessarily displace the need for a lengthy custodial term where the offending involves serious violence and the offender has an extensive relevant prior record.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(2), 154F, 344A

Cases
- Kershaw v R [2009] NSWCCA 19