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Court of Criminal Appeal 13 August 2014

R v Booth

[2014] NSWCCA 156

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCING PROSECUTION APPEAL MANIFEST INADEQUACY FAILURE TO ACCUMULATE CIRCUMSTANCES OF DEPRIVATION

Citation: R v Booth [2014] NSWCCA 156
Court: Court of Criminal Appeal, NSW
Date: 13 August 2014
Judge(s): Hoeben CJ at CL, Beech-Jones J, Hamill J (judgment delivered by Hamill J)

Background

The Crown appealed a sentence imposed in the District Court on 18 December 2013 following the respondent's conviction on three serious indictable offences: aggravated break, enter and steal; specially aggravated break, enter and commit a serious indictable offence (involving assault causing actual bodily harm with wounding); and robbery with reckless infliction of actual bodily harm. Two further offences of aggravated break, enter and steal were taken into account on a Form 1.

The offences occurred over a short period in February 2012 and involved a series of home invasions in Sydney. In one incident, a 78-year-old woman was pushed to the ground twice, sustaining hairline fractures and compressed vertebrae in her lower back. The respondent had a significant prior criminal record and was on parole at the time.

The sentencing judge, Judge Toner, imposed a total effective sentence of six years and six months with a non-parole period of two years and six months. The Crown contended the total sentence was manifestly inadequate, particularly because of the high degree of concurrency between the individual sentences and the disproportionate ratio of the non-parole period to the total sentence.

  • Whether the individual sentences imposed on each count were disproportionate to the gravity of the offences
  • Whether the manner of accumulation resulted in a manifestly inadequate total sentence
  • Whether the sentencing judge erred in the application of the special circumstances finding
  • Whether the sentencing judge failed to have regard to deterrence principles
  • Whether the total effective sentence was manifestly inadequate in all the circumstances
  • How principles from Bugmy v The Queen [2013] HCA 37 and Munda v Western Australia [2013] HCA 38 applied to the sentencing of an Aboriginal offender with significant background disadvantage

Decision

The Court of Criminal Appeal allowed the appeal on the basis that the total effective sentence was manifestly inadequate, though it did so to a moderate degree. The Court found that the primary error was not in the individual sentences, which Hamill J largely endorsed, but in the failure to accumulate the sentence on count 3 to any meaningful extent on the sentences for counts 1 and 2. The concurrence of count 3 with count 1 left a disproportionately low non-parole period relative to the total sentence.

On the question of deterrence, the Court declined to find that the sentencing judge had entirely ignored the principle. Consistent with the High Court's guidance in Bugmy and the well-established principles in R v Fernando, the Court affirmed that general deterrence is of diminished relevance where the offender has grown up in circumstances of profound deprivation and disadvantage. The respondent's Aboriginal background, intellectual disability, institutional upbringing, and severe childhood deprivation were all properly treated as reducing the weight of deterrence.

The Court exercised its residual discretion cautiously. It acknowledged that the principles of sentencing pulled strongly in opposite directions: serious offences with a bad record on one side, and compelling personal circumstances on the other. Judge Toner had described the respondent's background as "a national disgrace," and the Court of Criminal Appeal agreed that those circumstances were highly relevant. Nevertheless, the sentencing judge's failure to impose any accumulation for count 3 was an error that required correction.

The Court imposed an aggregate sentence of seven and a half years with a non-parole period of three and a half years. This was achieved by accumulating count 2 by six months on count 1 (as the original sentencing judge had done) and then accumulating count 3 by a further twelve months. Special circumstances were confirmed, resulting in a non-parole period representing approximately 47 percent of the total sentence, to allow for a lengthy parole period to support rehabilitation.

Orders Made

  • Appeal allowed
  • Sentences imposed in the District Court quashed
  • Aggregate sentence of 7 years and 6 months imposed, commencing 18 December 2012 and expiring 17 June 2020
  • Non-parole period of 3 years and 6 months, commencing 18 December 2012 and expiring 17 June 2016
  • The respondent to become eligible for release to parole at the expiration of the non-parole period

Key Takeaways

  • The Court of Criminal Appeal confirmed that the primary error in this case was the failure to accumulate the third sentence at all, rather than any error in the quantum of the individual sentences. Failure to accumulate can itself render a total effective sentence manifestly inadequate.

  • Consistent with Bugmy v The Queen (2013) HCA 37 and R v Fernando (1992), the court reaffirmed that general deterrence is of limited relevance when an offender has been raised in circumstances of profound deprivation, disadvantage, and marginalisation. This principle applies even where the offending is serious.

  • The sentencing court's residual discretion to decline or moderate an increase on Crown appeal remains significant. Even where error is established, the Court of Criminal Appeal may exercise that discretion to impose only a moderate adjustment, particularly where compelling personal circumstances exist.

  • Special circumstances findings under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) can legitimately result in a non-parole period representing a substantially lower proportion of the total sentence, where a lengthy parole period is in the interests of both the offender's rehabilitation and community protection.

  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court of Criminal Appeal may resentence by imposing an aggregate sentence, while recording the individual sentences that would otherwise have been imposed, as demonstrated in this decision and in SHR v R [2014] NSWCCA 94.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 95(1), 112(2), 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 44(2B), 53A

Cases
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Munda v Western Australia [2013] HCA 38; 294 CLR 600
- R v Fernando (1992) 76 A Crim R 58
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Henry and ors [1999] NSWCCA 111; 46 NSWLR 346
- Neal v The Queen (1982) 149 CLR 305
- Johnson v The Queen [2004] HCA 15
- Hili and Jones v The Queen [2010] HCA 450
- R v Engert (1994) 84 A Crim R 67
- R v Nykolyn [2012] NSWCCA 219
- Brown v R [2012] NSWCCA 199
- R v Cramp [2004] NSWCCA 264
- R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
- R v Harris [2007] NSWCCA 130
- R v Israil [2002] NSWCCA 255
- R v Gladue [1999] 1 SCR 688
- R v Ipeelee [2012] 1 SCR 433