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Court of Criminal Appeal 14 December 2012

Boyd v R

[2012] NSWCCA 279

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE APPEAL AGAINST SENTENCE DISCRETIONARY DECISION NO ERROR

Citation: Boyd v R [2012] NSWCCA 279
Court: NSW Court of Criminal Appeal
Date: 14 December 2012
Judge(s): Basten JA, Adams J, R A Hulme J (reasons of R A Hulme J)

Background

The appellant was sentenced in the District Court for offences arising from a late-night forced entry into a nightclub on the NSW Central Coast. He and two co-offenders, having consumed substantial alcohol, broke through the nightclub's front door and entered the premises armed with a long pole and a hammer. The appellant held a bottle in a threatening manner toward the manager while his co-offender struck the manager with a pole and damaged property with a hammer.

The most serious charge was aggravated break, enter and commit a serious indictable offence under s 112(2) of the Crimes Act 1900, which carries a maximum of 20 years imprisonment and a standard non-parole period of five years. The appellant received a sentence of four years and eight months with a non-parole period of three years and six months, served concurrently with a 14-month fixed term for damaging property in company.

The appellant sought leave to appeal against the severity of the sentence for the s 112(2) offence on two grounds: that the sentencing judge wrongly used his criminal history against him on the question of remorse, and that the judge erred in declining to find special circumstances.

  • Whether the sentencing judge erred by allowing the appellant's past criminal history to affect the assessment of remorse or contrition.
  • Whether the sentencing judge erred in declining to find "special circumstances" that would justify reducing the statutory ratio between the non-parole period and the total sentence.
  • Whether the sentencing judge failed to give adequate reasons for declining to find special circumstances.

Decision

On remorse and criminal history: The Court of Criminal Appeal confirmed that a past criminal history is not, in itself, a proper basis for rejecting evidence of remorse. The relevant question is whether the offender genuinely holds feelings of contrition, and criminal antecedents do not directly bear on that assessment. However, the Court found no error on the facts: the sentencing judge had a legitimate basis to reject the appellant's claimed remorse by reference to other matters, including that the appellant had resumed heavy drinking just months after completing parole and had committed these serious offences only two days after that parole ended.

On special circumstances: Under s 44 of the Crimes (Sentencing Procedure) Act 1999, a court may depart from the standard ratio of non-parole to total sentence where "special circumstances" exist. The Court confirmed that such a finding is discretionary, and an appellate court will be slow to interfere with the sentencing judge's exercise of that discretion. The sentencing judge had turned his mind to the issue and declined to make the finding, which was an outcome open to him on the material.

On the reasons question: The Court rejected the contention that the sentencing judge had failed to give reasons for declining to find special circumstances. His Honour's reference to the principle that a non-parole period should reflect the minimum time justice requires an offender to serve was sufficient explanation for the decision not to adjust the statutory ratio.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge cannot treat an offender's past criminal history as, of itself, evidence negating remorse or contrition. That assessment must be based on the genuineness of the offender's feelings of regret.
  • No error arises, however, where a sentencing judge rejects claimed remorse on other proper grounds supported by the evidence, even if the reasons are expressed imperfectly.
  • A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 is discretionary. Simply because circumstances capable of qualifying exist does not compel a finding in the offender's favour.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that it will intervene on a special circumstances question only where the non-parole period is manifestly inadequate or excessive, not merely because a different finding was open.
  • Sufficient reference to the principle underlying non-parole periods, specifically that the period should reflect the minimum time justice requires, can constitute adequate reasons for declining to find special circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 195(1A)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- Alvares v R; Farache v R [2011] NSWCCA 33
- Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
- Caristo v R [2011] NSWCCA 7
- Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
- Rees v R [2012] NSWCCA 47
- R v Wickham [2004] NSWCCA 193