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13
Court of Criminal Appeal 12 October 2012

Hanania v R

[2012] NSWCCA 220

Theft & property
CRIMINAL LAW SENTENCE APPEAL AGGRAVATED BREAK ENTER AND STEAL NO ERROR IN NOT OBTAINING PRE SENTENCE REPORT WHETHER FULL

Citation: Hanania v R [2012] NSWCCA 220
Court: NSW Court of Criminal Appeal
Date: 12 October 2012
Judge(s): Hoeben JA, Johnson J, Button J

Background

The appellant was sentenced in the District Court at Parramatta after pleading guilty at the earliest opportunity to one count of aggravated break, enter and steal, committed in company with a co-offender. The maximum penalty for the offence under s 112(2) of the Crimes Act 1900 was 20 years' imprisonment, with a standard non-parole period of five years.

The offence involved the appellant and a co-offender breaking into a jewellery shop at night using industrial tools, including a one-metre chisel to rip through a metal roof. They stole gems valued at approximately $200 to $300 before police arrived and arrested them. Two further offences were placed on a Form 1 (that is, taken into account at sentencing without separate conviction): possession of a safebreaking implement (an angle grinder) and intentional or reckless damage to property (smashing the shop's front glass door while fleeing).

The sentencing judge imposed a head sentence of two years' imprisonment with a non-parole period of 12 months, finding special circumstances that justified departing from the standard one-third parole ratio. The appellant, who was 20 at the time of the offence and 21 at sentence, had a disrupted upbringing, a history of diagnosed ADHD and conduct disorder, and had made considerable rehabilitative progress including psychological treatment and family stability. He appealed on five grounds.

  • Whether the sentencing judge erred by failing to give sufficient weight to the psychologist's report regarding the appellant's rehabilitation
  • Whether the judge erred in not obtaining a pre-sentence report given the psychological evidence before the court
  • Whether the judge engaged in impermissible double counting by taking the Form 1 offences into account alongside the principal offence
  • Whether there was specific double counting in treating possession of the angle grinder (a Form 1 offence) as an aggravating feature, given the same tool was used in the principal offence
  • Whether the sentence of full-time custody was manifestly excessive in all the circumstances

Decision

Ground 1 (insufficient weight to psychological report): The Court dismissed this ground at the threshold. Hoeben JA noted that a ground framed as a sentencing judge having given "insufficient regard" to evidence necessarily concedes that some regard was given, making it a direct challenge to the sentencing discretion rather than an identifiable error. Button J agreed, finding the judge had in fact engaged with the psychological evidence.

Ground 2 (failure to obtain pre-sentence report): Button J found no error. The judge had before him a detailed psychological report, oral evidence from the appellant, agreed facts, and a criminal record. The decision not to call for a further pre-sentence report was open in those circumstances. Button J also noted that no application for such a report had been made by defence counsel at first instance.

Ground 3 (double counting of Form 1 offences generally): The Court found this ground misconceived. There is no rule against a sentencing judge increasing the overall sentence to reflect Form 1 matters; that is their proper function. The judge was entitled to have regard to the totality of the criminal conduct, including the Form 1 offences, when arriving at the appropriate sentence for the principal offence.

Ground 4 (double counting, angle grinder specifically): The Court rejected this ground, distinguishing between the angle grinder's role in the principal offence and as a separate Form 1 offence. The angle grinder was discovered in a bag in the roof cavity and had not been used in the break-in itself. Possession of it as a safebreaking implement was an independent course of criminal conduct, properly placed on the Form 1. Button J, endorsed by Hoeben JA, observed that grounds framed as insufficient regard face the same threshold difficulty described under Ground 1.

Ground 5 (manifest excess): The Court acknowledged the strength of the appellant's subjective case, including his commitment to psychological treatment, young age, early plea, and family responsibilities. Button J accepted that a non-custodial sentence might have been open and would not necessarily have attracted a successful Crown appeal. However, applying the well-established principle that manifest excess requires more than showing that another sentence was available, the Court found the sentence could not be characterised as inherently erroneous. The offence was planned, targeted a specific business, involved coordinated teamwork, and was preceded by a materially similar offence in the appellant's criminal history. The sentence length, relative to the maximum and with the non-parole period already reduced by one-third for special circumstances, was not excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A ground of appeal framed as a sentencing judge having given "insufficient regard" to evidence concedes that some weight was in fact given, and therefore amounts to a direct challenge to the exercise of sentencing discretion rather than an identifiable legal error.
  • Taking Form 1 offences into account when sentencing for a principal offence does not constitute double counting; that is precisely the purpose of the Form 1 procedure under the Crimes (Sentencing Procedure) Act 1999.
  • Where a Form 1 offence concerns an item that was present at the scene but was not actually used in the commission of the principal offence, the court may treat possession of that item as a genuinely independent course of criminal conduct.
  • No error arises from a failure to obtain a pre-sentence report where the sentencing court already has a psychological report, oral evidence from the offender, and other relevant material, particularly where no application for such a report was made below.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal reaffirmed that the availability of a non-custodial alternative does not, of itself, render a custodial sentence inherently erroneous.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 114(1)(b), 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Cases:
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Yang v R [2012] NSWCCA 49