Citation: Aslett v R [2012] NSWCCA 235
Court: NSW Court of Criminal Appeal
Date: 15 November 2012
Judges: McClellan CJ at CL, Bellew J, Button J
Background
The appellant pleaded guilty in the District Court at Penrith to break and enter a dwelling and commit a serious indictable offence in circumstances of special aggravation (being armed with a taser), contrary to s 112(3) of the Crimes Act 1900, along with a charge of common assault. The offending arose from an incident in July 2010 in which the appellant entered a private home uninvited, discharged a taser, brandished a knife towards the occupant's throat, and caused property damage, all while demanding to see another person. Three females were present, two of them aged 16.
The sentencing judge imposed a non-parole period of 3 years, 4 months and 14 days, with a total term of 5 years and 7 months and 14 days for the principal offence. The appellant sought leave to appeal against sentence on the grounds that the sentencing judge erred in her approach to the standard non-parole period and gave insufficient weight to mitigating circumstances of the offending.
Legal Issues
- Whether the sentencing judge erred in her consideration of the standard non-parole period applicable to the offence under s 112(3) of the Crimes Act 1900 (7 years), particularly following the High Court's guidance in Muldrock v R [2011] HCA 39
- Whether the sentencing judge gave insufficient weight to aspects of the circumstances of the offending that bore on its objective seriousness, specifically arguments that the offence fell at the lower end of the range rather than just below the mid-range
Decision
On the first ground, the Court considered the sentencing judge's treatment of the standard non-parole period in light of Muldrock. The High Court in Muldrock had clarified that standard non-parole periods operate as legislative guideposts, and sentencing judges must take them into account without treating them as determinative benchmarks tethered to a precise finding about mid-range seriousness. The Court examined whether the sentencing judge's remarks disclosed any error in approach.
On the second ground, the Court declined to entertain the argument that the offence fell at the lower end of the range of objective seriousness. At first instance, the appellant's own representative had submitted the offence was "probably at the mid-range of objective seriousness," and the Crown did not dispute that characterisation. An appellate court will be reluctant to entertain arguments that contradict concessions made below, and even more so where the position urged on appeal is inconsistent with what was put to the sentencing judge.
The Court also noted that, when all circumstances were weighed, the matter was clearly one of some seriousness. The aggravating features included the unannounced entry into an occupied home after dark, the presence of two teenage girls, possession of both a taser and a knife, violent and threatening conduct throughout, and evidence of planning in the form of a waiting vehicle. The sentencing judge's finding that the offence sat just below the mid-range was, if anything, more favourable to the appellant than the submission made on his behalf at sentencing.
Neither ground of appeal was established. The Court granted leave to appeal but dismissed the appeal.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Following Muldrock v R (2011) 244 CLR 120, the Court of Criminal Appeal confirmed that standard non-parole periods function as legislative guideposts to be taken into account in sentencing, not as fixed reference points anchored to a determination of mid-range objective seriousness.
- An appellate court will not readily entertain arguments that could have been, but were not, advanced before the sentencing judge, and will be even less willing to permit an appellant to resile from concessions made in the court below.
- Where an appellant's counsel at sentencing conceded that an offence fell at the mid-range of objective seriousness, the Court of Criminal Appeal treated that concession as a significant obstacle to arguing on appeal that the offence was at the lower end.
- No error was established in the sentencing judge's assessment of objective seriousness where the features of the offending, including armed entry into an occupied dwelling, threatening conduct towards multiple victims, and evidence of planning, supported a finding at or near the mid-range.
- The absence of subjective material at sentencing, arising from the appellant's own election not to call evidence or tender a pre-sentence report, limited the sentencing judge's ability to make favourable findings on remorse, contrition, and rehabilitation prospects.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61, 112(3)
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
Cases
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Zreika v R [2012] NSWCCA 44
- Butler v R [2012] NSWCCA 23
- Williams v R [2012] NSWCCA 172
- Aldous v R [2012] NSWCCA 153
- Beldon v R [2012] NSWCCA 194