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14
Court of Criminal Appeal 4 February 2013

R v Rae

[2013] NSWCCA 9

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW CROWN SENTENCE APPEAL S 53A CRIMES (SENTENCING PROCEDURE) ACT

Citation: R v Rae [2013] NSWCCA 9
Court: NSW Court of Criminal Appeal
Date: 4 February 2013
Judges: Macfarlan JA, Price J, Button J (Button J delivered the principal judgment)

Background

The respondent pleaded guilty in the District Court at Newcastle to three substantive offences: aggravated break, enter and steal (in company); discharging a firearm with intent to inflict grievous bodily harm; and unauthorised possession of a prohibited firearm. A fourth offence of unauthorised possession of ammunition was dealt with by fine.

The offences arose from events in July 2010. The break and enter involved the targeted theft of veterinary medications valued at approximately $16,000. Three days later, the respondent confronted an acquaintance during a chance road encounter, pointed a pistol at him from close range, threatened to kill him, and fired a shot that struck the victim in the thigh. Police subsequently found a separate shortened firearm at the respondent's home, where children were present.

The sentencing judge imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999, with a head sentence of 5 years 7 months and a non-parole period of 4 years. The Crown appealed on the basis that the aggregate sentence was manifestly inadequate.

  • Whether the aggregate head sentence was manifestly inadequate, having regard to the principle of cumulation across multiple serious offences
  • Whether the individual indicative sentences (expressed pursuant to s 53A(2)(b)) were themselves manifestly inadequate
  • Whether the Court should exercise its discretion not to intervene despite finding appellable error
  • What sentence the Court of Criminal Appeal should substitute, including any reduction to reflect the respondent's demonstrated distress at being subject to a Crown appeal

Decision

The Court found that the individual indicative sentences were not manifestly inadequate when considered in isolation. However, the aggregate sentence was problematic because it was identical to the indicative head sentence for the firearm-discharging offence alone. This meant the aggregate sentence gave no effect whatsoever to the principle of cumulation across three serious offences.

Button J held that an aggregate sentence under s 53A must still reflect the totality of the offending. By treating the most serious individual indicative sentence as effectively the whole sentence, the sentencing judge failed to account for the criminality represented by the other two offences. The aggregate sentence was therefore manifestly inadequate.

The Court declined to exercise its residual discretion to withhold intervention. The sentencing error was significant, and the public interest in appropriate sentences for serious crimes outweighed the personal hardship the increase would cause the respondent. The Court acknowledged the respondent's tragic personal history, including the successive suicides of both parents, and his genuine engagement with rehabilitation while on remand.

Consistent with established practice on Crown appeals, the Court imposed a sentence shorter than what should have been imposed at first instance, to reflect the respondent's actual distress and anxiety arising from the appeal proceedings.

Orders Made

  • Crown appeal against sentence allowed
  • The aggregate sentence imposed by the District Court on 26 August 2011 quashed
  • Respondent re-sentenced to an aggregate head sentence of 7 years 7 months, commencing 16 July 2010 and expiring 15 February 2018, with an aggregate non-parole period of 5 years 5 months, commencing 16 July 2010 and expiring 15 December 2015

Key Takeaways

  • An aggregate sentence imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 must reflect the totality of an offender's criminality across all offences and cannot simply mirror the indicative sentence for the most serious single offence.
  • Individual indicative sentences and the aggregate sentence require separate analysis on a Crown appeal: finding that individual indicative sentences are not manifestly inadequate does not preclude a finding that the aggregate sentence is.
  • The Court of Criminal Appeal confirmed that the well-established principle from Director of Public Prosecutions (Cth) v De La Rosa applies: where a Crown appeal is upheld, the substituted sentence is reduced from what should have been imposed at first instance, to reflect the genuine distress and anxiety experienced by the respondent as a result of the appeal.
  • Significant mitigating subjective features, including severe personal tragedy and demonstrated rehabilitative steps, do not preclude a court from correcting a manifestly inadequate sentence where the error in principle is substantial.
  • In re-sentencing after a successful Crown appeal, the Court was content to retain the original indicative sentences from the first instance, given they were not challenged and no error in them was identified.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33A, 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A, 54B(4A)
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Procedure Act 1986 (NSW), s 166
- Firearms Act 1996 (NSW), ss 7(1), 65(3)

Cases
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Melbom v R [2011] NSWCCA 22
- PD v R [2012] NSWCCA 242
- R v Brown [2012] NSWCCA 199
- R v JW [2010] NSWCCA 49; (2010) 199 A Crim R 486
- Sproates v R [2009] NSWCCA 29