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Court of Criminal Appeal 24 July 2013

Allen v R

[2013] NSWCCA 173

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE AGGRAVATED BREAK AND ENTER WITH INTENT WHETHER MANIFESTLY EXCESSIVE

Citation: Allen v R [2013] NSWCCA 173
Court: NSW Court of Criminal Appeal
Date: 24 July 2013
Judges: Hoeben CJ at CL, McCallum J, Schmidt J

Background

The appellant pleaded guilty in the District Court to aggravated breaking and entering a dwelling house and committing stealing, contrary to s 112(2) of the Crimes Act 1900. The aggravating circumstance was that the appellant knew people were inside the home at the time. A further offence of possessing housebreaking implements was taken into account on a Form 1.

The offence occurred late at night at a residential property in Lambton. The occupant found the appellant attempting to conceal himself at the front of the house, and discovered that a flyscreen had been removed, there were footprints on a bed, and his wife's handbag containing approximately $170 in cash, a mobile phone and bank cards was missing. Police located the appellant nearby carrying the stolen items along with two screwdrivers and two torches.

The District Court sentenced the appellant to a total term of 3 years and 9 months imprisonment, with a non-parole period of 2 years and 3 months. The appellant sought leave to appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the time for filing a notice of application for leave to appeal should be extended, given the filing occurred approximately 19 months after sentencing.
  • Whether the sentence of 3 years and 9 months imprisonment was manifestly excessive for the offence of aggravated break and enter in the circumstances.
  • Whether the decision in Kean v R [2011] NSWCCA 136 provided a meaningful comparator supporting a finding of manifest excess.

Decision

The Court granted the extension of time. The appellant had filed documents within days of commencing his sentence, reasonably believing he had initiated an appeal. A series of administrative errors within the prison system, combined with an unfounded reassurance that discouraged further inquiry, caused the significant delay. The Crown did not oppose the extension.

On the manifest excess ground, McCallum J (with whom the other judges agreed) found the appellant had not established that the sentence was unreasonable or plainly unjust, applying the test in Dinsdale v R (2000) 202 CLR 321. The Court acknowledged the sentence was stern for a young man aged 22, but noted the sentencing judge had properly weighed both aggravating factors (the appellant was on parole for a similar offence at the time, and had an extensive criminal history including over 50 housebreaking offences as a juvenile and this being his 10th adult conviction for housebreaking) and mitigating factors (the relatively modest value of the property stolen, the absence of significant planning, a genuine expression of remorse, and a 25% discount for an early guilty plea). A finding of special circumstances was also made to allow a longer period on parole given the appellant's young age and need for supervision.

The appellant relied heavily on Kean v R as a comparable case suggesting a lower sentence was appropriate. The Court rejected this comparison. Hoeben CJ at CL noted that Kean involved two offences, which engaged the principle of totality and made any direct comparison of limited value. The Court emphasised that sentencing involves a broad discretion, and that even if the facts of Kean had been identical, the absence of unreasonableness or plain injustice would preclude appellate interference.

Orders Made

  • Time within which the notice of application for leave to appeal may be filed extended to 10 April 2013.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A ground of manifest excess requires the appellant to demonstrate the sentence was unreasonable or plainly unjust; sternness alone does not warrant substituting the sentencing court's discretion with a more lenient outcome.
  • Comparing sentences across cases carries limited utility where the factual circumstances differ in material respects. Where two offences were involved in a supposedly comparable case, the principle of totality further diminishes the value of the comparison.
  • Administrative errors within the prison system that cause a delay in filing an appeal, where the appellant had reasonably taken steps to commence proceedings, may provide adequate explanation to support an extension of time.
  • A history of being on parole for a similar offence at the time of the new offending, combined with an extensive prior record, provides a firm basis for a sentencing judge to place significant weight on specific deterrence.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, a finding of special circumstances can justify departing from the standard ratio between the non-parole period and the balance of term, particularly where an offender's youth and need for supervision point to a longer supervisory period on parole.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 114(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 44(2), 54A
- Criminal Appeal Act 1912 (NSW), s 10

Cases:
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- Kean v R [2011] NSWCCA 136
- In the matter of the Attorney-General's Application [No 1] under s 26 of the Criminal Appeal Act; R v Ponfield & Ors [1999] NSWCCA 435; (1999) 48 NSWLR 327