Citation: Biles v R [2014] NSWCCA 170
Court: Court of Criminal Appeal, New South Wales
Date: 4 August 2014
Judge(s): Bathurst CJ; Adams J; R A Hulme J
Background
The applicant, a 21-year-old man with a significant criminal history, sought leave to appeal against a sentence imposed in the District Court for aggravated break, enter and commit a serious indictable offence (larceny). The offence involved entering the home of an elderly couple aged 85 and 70, barging into their bedroom while they rested, and stealing Mrs Pike's handbag containing cash and personal items. Mr Pike's victim impact statement described lasting trauma and a persistent sense of insecurity in their own home.
Judge Toner SC sentenced the applicant to 5 years and 3 months imprisonment with a non-parole period of 3 years. That sentence represented a 25 per cent reduction from a starting point of 7 years to reflect the utilitarian value of an early guilty plea. The applicant's personal circumstances included substance abuse, limited employment history, a troubled upbringing, and the loss of twin daughters at birth in 2011.
On appeal, the applicant raised three grounds: that the sentencing judge had overlooked an earlier finding of remorse, that no express conclusion was reached on the objective seriousness of the offence, and that the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge's failure to mention remorse in his formal remarks on sentence meant it had been overlooked when fixing the penalty.
- Whether the absence of an express conclusion on the objective seriousness of the offence constituted a legal error under the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Whether the sentence of 5 years and 3 months with a 3-year non-parole period was manifestly excessive in light of both the objective seriousness of the offence and the applicant's subjective circumstances.
Decision
Ground 1: Remorse. The Court rejected the argument that remorse had been overlooked. During submissions, the judge made an unequivocal statement accepting the applicant's remorse, and shortly afterwards announced the sentence he intended to impose. The Court noted that remarks made during submissions do not always represent a final and considered view, but here the statement was clear and unqualified. The absence of a further mention of remorse in the formal sentencing remarks did not establish that it was ignored.
Ground 2: Objective seriousness. The Court found no error. Citing Stewart v R [2012] NSWCCA 183, it held that one may infer from the judge's recitation of the facts and aggravating factors, together with the sentence imposed, that he regarded the offence as more serious than the applicant contended. The Court also noted that the applicant's experienced solicitor at first instance made no submission on the level of objective seriousness beyond describing the offence as "a terrible crime," and declined to make any submissions in reply after the intended sentence was indicated.
Ground 3: Manifest excess. The Court was not persuaded the sentence was manifestly excessive. The vulnerability and age of the victims properly enhanced the objective seriousness of the offence. The applicant's history of similar offending significantly limited the weight available to be given to subjective factors. Although remorse was accepted and the non-parole period was shortened to allow extended parole supervision, rehabilitation prospects were described as guarded at best.
On sentencing statistics, the Court endorsed the High Court's position in Wong v The Queen that bare sentencing statistics are of limited utility without an articulation of the principles unifying the outcomes in the cases compared. The statistics and schedule of cases tendered by the applicant were found to add little to the analysis.
Orders Made
- Leave to appeal against sentence refused.
Key Takeaways
- A sentencing judge's failure to repeat a finding of remorse in formal remarks does not, without more, establish that remorse was disregarded in fixing the sentence, particularly where an unequivocal acceptance of remorse was expressed shortly before the sentence was announced.
- Assessing the objective seriousness of an offence remains an essential element of the sentencing process, but a court may infer the judge's assessment from the recitation of facts, aggravating factors, and the sentence ultimately imposed, rather than requiring an express formulaic declaration.
- The elderly and vulnerable character of the victims was a factor that properly elevated the objective seriousness of the home invasion in this case.
- Under the principle confirmed in Wong v The Queen (2001) 207 CLR 584 and endorsed in Hili v The Queen (2010) 242 CLR 520, bare sentencing statistics are of limited value unless accompanied by an explanation of the principles that the disparate outcomes reveal.
- In dismissing the appeal, the Court confirmed that a significant criminal history for similar offending reduces an applicant's claim to leniency, even where remorse is accepted and some subjective hardship is established.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(2) (aggravated break, enter and commit serious indictable offence)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 3A (purposes of sentencing) and the standard non-parole period provisions
Cases:
- Ehrlich v R [2012] NSWCCA 38; 219 A Crim R 415
- Geddes v R [2012] NSWCCA 94
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Campbell [2014] NSWCCA 102
- R v Dodd (1991) 57 A Crim R 349
- R v Huynh [2005] NSWCCA 220
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Stewart v R [2012] NSWCCA 183
- Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584