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Court of Criminal Appeal 11 April 2011

R v Darren James Sotheren

[2011] NSWCCA 68

Theft & property
CRIMINAL LAW SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE APPEAL ALLOWED

Citation: R v Darren James Sotheren [2011] NSWCCA 68
Court: NSW Court of Criminal Appeal
Date: 11 April 2011
Judges: McClellan CJ at CL, McCallum J, R A Hulme J

Background

The applicant pleaded guilty in the District Court to being in a dwelling, stealing and breaking out, contrary to s 112(1)(b) of the Crimes Act 1900. The offence involved a daytime break-in to a Glebe home, from which the applicant fled when the owner returned. Stolen property included a charm bracelet, costume jewellery, and cash totalling around $2,800.

The applicant had a significant criminal history, including a manslaughter conviction and multiple aggravated robbery offences committed within a single 24-hour period in 2001. He had been released to parole on 6 September 2008 and committed the present offence approximately three months later, while still subject to that parole order.

The District Court sentenced him to a total term of four and a half years, with a non-parole period of two and a half years commencing 1 January 2010. That sentence had the practical effect of preventing the applicant from being considered for parole on two earlier eligible dates arising from his revocation and return to custody on the prior sentences.

  • Whether the sentencing judge erred by taking into account the applicant's parole status and the fact that the offence was the first in a series of offences when assessing the objective seriousness of the offence
  • Whether the judge failed to give proper weight to the fact that the offence could have been dealt with in the Local Court (and therefore carried a lower available sentence)
  • Whether the sentence was manifestly excessive having regard to the objective seriousness of the offence and the applicant's subjective circumstances

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in the assessment of objective seriousness. The judge's remarks explicitly stated that parole status and subsequent offending were taken into account when assessing the "objective gravity" of the offence. The Court held that these are not permissible considerations at that stage of the sentencing exercise, and that the expressions "objective gravity" and "objective seriousness" carry the same meaning. Whether an offender was on parole when committing the offence, or later committed further offences, is irrelevant to evaluating the seriousness of the objective circumstances of the particular offence.

The Court assessed the present offence as being of low objective seriousness. The break-in occurred during the day; the property stolen was of relatively modest value; no occupant was present when the applicant entered; he fled when the owner returned; and there was no gratuitous damage or violence.

Turning to subjective circumstances, the Court acknowledged a strong case in the applicant's favour. He had experienced serious abuse in childhood, struggled with drug dependency throughout his life, and had been placed after parole release in accommodation where other residents were using drugs. Evidence indicated he had made genuine initial progress in rehabilitation before reoffending.

The Court found the starting point of six years adopted by the sentencing judge was too high for an offence of this objective seriousness, even accounting for the aggravating features the Crown relied upon. After applying a 25 per cent reduction for the utilitarian value of the guilty plea, the Court substituted a total term of three years and nine months with a non-parole period of two years.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The sentence imposed by the District Court on 9 September 2009 was quashed and replaced with a term of imprisonment comprising a non-parole period of two years commencing 1 January 2010 and expiring 31 December 2011, and a balance of term of one year and nine months expiring 30 September 2013

Key Takeaways

  • An offender's parole status at the time of the offence and subsequent further offending are not factors that can be taken into account when assessing the objective seriousness of the particular offence under sentence, even though they may be relevant to the overall sentencing exercise.

  • The Court of Criminal Appeal treated "objective gravity" and "objective seriousness" as synonymous expressions, declining to accept that the sentencing judge had used them in different senses to avoid appellate error.

  • Under the sentencing framework, proportionality between sentence and the objective circumstances of the crime remains a fundamental requirement, as confirmed by the Court's reliance on R v Dodd (1991) and Veen v R (No 2).

  • A strong subjective case, including evidence of childhood abuse, mental health difficulties, drug dependency, and genuine early rehabilitative effort, can carry material weight in reducing the final sentence even where an offender has a lengthy criminal history.

  • In assessing whether a sentence was manifestly excessive for a break-and-enter offence, relevant indicators of low objective seriousness include the absence of occupants at entry, no violence or vandalism, and property of modest value: see Re Attorney General's Application No. 1 (Ponfield) (1999) 48 NSWLR 327.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 3, 137A
- Criminal Case Conferencing Trial Act 2008 (NSW)

Cases
- Re Attorney General's Application No. 1 (Ponfield) (1999) 48 NSWLR 327
- R v Dodd [1991] 57 A Crim R 349
- Morrison v R [2009] NSWCCA 211
- R v Palmer [2005] NSWCCA 349
- R v Sotheren [2001] NSWCCA 425