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Court of Criminal Appeal 16 May 2013

Brough v R

[2013] NSWCCA 110

DrugsTheft & property
CRIMINAL LAW: SENTENCE APPEAL DRUG REHABILITATION INSTITUTIONALISATION AT A YOUNG AGE NON PAROLE PERIOD.

Citation: Brough v R [2013] NSWCCA 110
Court: NSW Court of Criminal Appeal
Date: 16 May 2013
Judges: Latham J, Button J, Barr AJ (judgment delivered by Barr AJ)

Background

The appellant, a 29-year-old man with an extensive criminal record dating back to childhood, pleaded guilty in the Local Court to two counts of aggravated breaking and entering with larceny, arising from two commercial burglaries in Parramatta on the same night in August 2011. He had been at liberty for only 10 months of the preceding 12 years. His parole on a prior sentence was revoked following his arrest for these offences.

A psychiatrist's report tendered at sentencing diagnosed the appellant with opiate dependence, amphetamine abuse, prior drug-induced psychosis, and anti-social personality disorder. The report also identified significant institutionalisation and a guarded prognosis for rehabilitation, while recommending a range of custodial and community-based treatment interventions.

The District Court imposed an effective head sentence of three years and eight months, with a non-parole period of two years and two months. The appellant sought leave to appeal on two grounds: that insufficient weight was given to his institutionalisation and rehabilitation needs in structuring the sentence, and that the sentences were excessive.

  • Whether the sentencing judge gave sufficient weight to the appellant's institutionalisation and rehabilitation needs when apportioning the sentence between custodial and parole components.
  • Whether the sentences were excessive, and in particular whether the sentencing judge erred by approaching the non-parole period before fixing the head sentence.

Decision

On the first ground, the Court of Criminal Appeal accepted that institutionalisation is a recognised factor in sentencing. However, it rejected the argument that the sentencing judge had failed to account for it properly. The transcript demonstrated that the judge was well aware of the psychiatrist's recommendations and had engaged with them directly. The real difficulty, the Court found, was that the appellant's argument effectively sought to elevate rehabilitation above the other established purposes of sentencing, including deterrence, retribution, and community protection.

The Court emphasised that a sentencing court must balance all of these purposes and will fall into error if it imposes a sentence that fails to reflect the gravity of the offence. The allocation of time between custody and parole fell within the proper exercise of the sentencing discretion, and no error was established.

On the second ground, the Court rejected the submission that the judge had erred by mentioning the non-parole period before the head sentence during sentencing remarks. The Court noted that the structure of section 44 of the Crimes (Sentencing Procedure) Act 1999, which addresses non-parole periods before the balance of term, does not suggest that a judge reasons through those components in isolation or in a rigid sequence. The Court was satisfied that the judge had a sound appreciation of both the head sentence and the appropriate non-parole period, a view shared at the time by the appellant's own counsel.

Orders Made

• Leave to appeal refused

Key Takeaways

  • Institutionalisation is a recognised sentencing consideration in NSW, but it does not operate to override the other purposes of sentencing, including deterrence, retribution, and community protection.
  • A sentencing court is required to balance rehabilitation needs against the gravity of the offence; a sentence that fails to reflect that gravity will be in error, following R v Rushby [1977] 1 NSWLR 594 and R v Hayes [1984] 1 NSWLR 740.
  • Under section 44 of the Crimes (Sentencing Procedure) Act 1999, the statutory sequence of fixing a non-parole period before the balance of term does not require a judge to reason through those components in isolation or in a fixed order.
  • No error is established merely because a sentencing judge articulates a proposed non-parole period before discussing the head sentence in oral remarks; courts are entitled to express ideas in a linear fashion without that sequence indicating any methodological flaw.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the non-parole period's purpose is to provide a mitigation of punishment in favour of rehabilitation, as established in Bugmy v The Queen (1990) 169 CLR 525, but that it must still reflect the need for punishment and deterrence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases
- Bugmy v The Queen (1990) 169 CLR 525
- R v Rushby [1977] 1 NSWLR 594
- R v Hayes [1984] 1 NSWLR 740