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Court of Criminal Appeal 24 March 2011

KING v REGINA

[2011] NSWCCA 46

Theft & property
CRIMINAL LAW SENTENCE APPEAL WHETHER SENTENCE MANIFESTLY EXCESSIVE DAMAGE IN EXCESS OF $1.5 MILLION WHETHER USE OF THE TERM "MID PAROLE PERIOD

Citation: King v Regina [2011] NSWCCA 46
Court: Court of Criminal Appeal, New South Wales
Date: 24 March 2011
Judge(s): Hodgson JA, Adams J, Hall J (Hall J delivering the principal judgment)

Background

The applicant pleaded guilty in the District Court at Wagga Wagga to break, enter and commit a serious indictable offence, specifically malicious damage by fire under s 112(1) of the Crimes Act 1900, which carries a maximum penalty of 14 years imprisonment. The offence occurred on 7 December 2007, when the applicant broke into and deliberately lit fires at the laundry and linen service business where he had worked for three years. The fires caused damage exceeding $1.6 million.

Critically, the applicant committed this offence while subject to a conditional bond. Earlier in 2007, he had been sentenced in the Local Court on three separate offences and placed on an 18-month suspended sentence. The present offence constituted a breach of that bond.

The applicant was sentenced to a non-parole period of three years, commencing 18 March 2009, with a balance of term of approximately three years, three months and eighteen days. He sought leave to appeal on the single ground that the sentence was manifestly excessive.

  • Whether the sentence imposed for the s 112(1) offence was manifestly excessive, having regard to both the objective seriousness of the offence and the applicant's subjective circumstances.
  • Whether the sentencing judge erred by using "mid-range of objective seriousness" language in circumstances where the offence did not attract a standard non-parole period (a benchmark figure prescribed by statute for certain serious offences).
  • Whether the sentencing judge gave sufficient weight to the applicant's personal background, emotional circumstances, and other mitigating factors.

Decision

The Court of Criminal Appeal dismissed the appeal, finding that the sentencing judge had paid close attention to all relevant objective and subjective factors. Hall J, with whom Hodgson JA and Adams J agreed, concluded that no specific or latent sentencing error had been established.

On the question of terminology, the Court found that the sentencing judge's use of language associated with standard non-parole periods was not indicative of error when read in the context of her overall analysis. Established authority confirms that assessing where an offence sits on the scale of criminality is an essential part of the sentencing exercise regardless of whether a standard non-parole period applies. Such an assessment is akin to fact-finding or the exercise of a discretion and is only reviewable on the basis set out in House v The King (1936) 55 CLR 499.

On the subjective circumstances, the Court accepted that the sentencing judge was clearly mindful of the applicant's unfortunate personal background. However, her Honour had also found that the applicant had not been completely truthful with the psychologist or the Court, had shown no remorse, and had only fair prospects for rehabilitation. These findings legitimately tempered the weight given to mitigating factors. The Court also noted that the sentencing judge had adopted a generous approach by setting the non-parole period at approximately 48 percent of the total sentence, less than half the head sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that assessing the objective seriousness of an offence on a spectrum is a necessary step in sentencing even where the offence does not attract a standard non-parole period.
  • The use of "mid-range" language in a sentencing judge's remarks does not automatically constitute error; it must be read in the context of the overall sentencing analysis.
  • An assessment of objective seriousness on the scale of criminality is analogous to fact-finding or the exercise of a discretion, and is reviewable only on the principles in House v The King.
  • Where an applicant is found to have been untruthful to the sentencing court and to the assessing psychologist, and demonstrates no remorse, those findings may appropriately limit the mitigating weight given to subjective factors.
  • A non-parole period representing approximately 48 percent of the total sentence was characterised by the Court as a generous approach rather than a harsh one, supporting the conclusion that the sentence was not manifestly excessive.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(1), 114(1)(d), 117, 195(1)(a)

Cases
- Hinchcliffe v Regina [2010] NSWCCA 306
- House v The King (1936) 55 CLR 499
- Regina v Cage [2006] NSWCCA 304
- Regina v Gaudry & McDonald [2010] NSWCCA 70
- Regina v Sivell [2009] NSWCCA 286
- Regina v Way (2004) 60 NSWLR 168