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Court of Criminal Appeal 5 April 2011

McCarthy v R

[2011] NSWCCA 64

Also reported as (2011) 206 A Crim R 131
DrugsTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE APPEAL WHETHER SENTENCES MANIFESTLY EXCESSIVE INHERENT AND AGGRAVATING FEATURES GOOD PROSPECTS OF REHABILITATION EARLY GUILTY PLEA

Citation: McCarthy v R [2011] NSWCCA 64
Court: Court of Criminal Appeal, NSW
Date: 5 April 2011
Judges: Handley AJA, Adams J, Howie AJ

Background

The applicant pleaded guilty in the District Court to seven counts of robbery or attempted robbery and three counts of breaking, entering and stealing, with additional offences taken into account on a Form 1. The offences were committed between November 2007 and August 2008 and involved a series of armed robberies, most carried out with a sawn-off .22 rifle, along with residential and commercial break-ins. The applicant committed the offences to fund a drug habit.

The sentencing judge imposed an overall head sentence of 18 years with a non-parole period of ten years and six months, backdated to 28 October 2007. Significantly, the judge stated that but for a 50 per cent discount applied for substantial assistance to authorities and early guilty pleas, the head sentence would have been 36 years with a non-parole period of 22 years.

The applicant sought leave to appeal on the ground that the sentences imposed, and the overall term, were manifestly excessive.

  • Whether the sentencing judge erred by failing to refer to Judicial Information Research System (JIRS) statistics or comparable cases when assessing the appropriate sentence range.
  • Whether the overall head sentence and non-parole period were manifestly excessive, having regard to the applicant's early guilty pleas, substantial assistance to authorities, good prospects of rehabilitation, and the nature and number of the offences.
  • Whether the pre-discount notional sentence of 36 years (head) and 22 years (non-parole) was itself excessive, thereby producing an excessive result even after the 50 per cent reduction.
  • Whether the sentencing judge gave adequate individual weight to mitigating factors including the applicant's drug addiction, disclosure of offences to police, and rehabilitation efforts.

Decision

Adams J (with whom Handley AJA and Howie AJ agreed) accepted that the absence of any reference to JIRS statistics or comparative sentencing decisions constituted an error in principle. A sentencing judge is not obliged to cite such material, but where no comparative reference appears and the resulting sentences sit substantially above what statistics or precedents suggest is the norm, that absence may support an inference of manifest excess.

The Court accepted that the pre-discount notional sentence of 36 years was itself excessive when measured against the objective seriousness of the individual offences, the totality principle, and the available mitigating factors. The combined effect of that inflated starting point, even after the 50 per cent discount, produced an overall sentence that was manifestly excessive.

The Court gave substantial weight to the applicant's assistance to authorities, which was described as genuinely significant: the applicant had voluntarily disclosed offences that would not otherwise have come to light, and had cooperated extensively with police. Under section 23(3) of the Crimes (Sentencing Procedure) Act 1999, a court may impose a sentence that is disproportionate to the offence where assistance has been rendered, and the Court confirmed that principle applied here. However, the pre-discount base had to be correct before that provision could operate properly.

The Court resentenced the applicant, imposing a revised overall head sentence with a reduced non-parole period. The new sentences applied concurrency and partial accumulation across the individual counts to reflect totality, while still acknowledging the serious and repetitive nature of the offending.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The original sentences were quashed and the applicant was resentenced.

Key revised sentences included:

  • Count 1 (armed robbery): Non-parole period of 2 years, balance of term 1 year 6 months, commencing 28 November 2007.
  • Count 2 (break, enter and steal): Non-parole period of 9 months, balance of term 6 months, commencing 28 February 2010.
  • Count 3 (armed robbery): Non-parole period of 2 years, balance of 1 year, commencing 28 November 2007.
  • Count 4 (armed robbery in company): Non-parole period of 3 years 6 months, balance of 1 year 6 months, commencing 28 November 2008.
  • Count 6 (armed robbery): Non-parole period of 3 years, balance of 2 years, commencing 28 May 2010.
  • Count 7 (attempted armed robbery): Non-parole period of 2 years 6 months, balance of 1 year, commencing 28 May 2010.
  • Counts 9 and 10 (armed robbery/assault with intent to rob): Non-parole periods of 2 years 6 months each, balance of 1 year 6 months each, commencing 28 May 2010.
  • Section 166 certificate (dangerous driving): Fixed term of 3 months commencing 28 February 2013.

Key Takeaways

  • A sentencing judge's failure to refer to JIRS statistics or comparable cases is not automatically an error, but it can support a finding of manifest excess where the resulting sentences are substantially above the range suggested by that material.
  • Under section 23(3) of the Crimes (Sentencing Procedure) Act 1999, a court may impose a sentence disproportionate to the offence where an offender has rendered substantial assistance to authorities. However, the notional pre-discount sentence must itself be appropriately calibrated, or the discounted result will remain infected by the original error.
  • Where a sentencing judge applies a percentage reduction for assistance and guilty pleas, an inflated starting point will carry through to produce an excessive final sentence even if the discount percentage is correct.
  • The totality principle requires that accumulated sentences across multiple serious counts reflect the overall criminality without producing an aggregate that is crushing or disproportionate, even where individual sentences might themselves be defensible in isolation.
  • Voluntary disclosure of offences to police that would not otherwise have been detected is a significant mitigating factor, distinct from, and in addition to, the credit available for a guilty plea.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(2), 112(1)(a), 344A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23(3)
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 42(2)

Cases:
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Hili v R; Jones v R [2010] HCA 45
- McIvor v R [2010] NSWCCA 7
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- R v Bavadra [2000] NSWCCA 292
- R v Berrell [2003] NSWCCA 85
- R v Evans [2000] NSWCCA 20
- R v Henry (1999) 46 NSWLR 346
- R v Itamua [2000] NSWCCA 502
- R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
- Veen v The Queen (No 2) (1988) 164 CLR 465