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Court of Criminal Appeal 1 October 2014

Carr v R

[2014] NSWCCA 202

Firearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: Carr v R [2014] NSWCCA 202
Court: NSW Court of Criminal Appeal
Date: 1 October 2014
Judge(s): Hoeben CJ at CL; Fullerton J; Adamson J

Background

The applicant pleaded guilty in the Local Court to knowingly making an improvised explosive device (particularised as a "parcel bomb") with intent to injure, contrary to s 55(a) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 10 years imprisonment, with no applicable standard non-parole period.

The facts established that the applicant constructed a homemade device from a battery, spring switch, wiring and a firecracker, with ball bearings glued inside, and arranged for it to be delivered by post to his victim. The device detonated in the victim's hands when he attempted to open it, causing a minor burn and temporary ringing in his ears. A threatening note was found among the remnants. DNA on the wiring matched the applicant.

After a 25 per cent discount for the early guilty plea, the District Court sentenced the applicant to 4 years imprisonment with a non-parole period of 3 years. The applicant sought leave to appeal that sentence on two grounds.

  • Whether the sentencing judge erred by treating the applicant's motive as a factor that increased the objective seriousness of the offending
  • Whether the sentence of 4 years imprisonment (with a 3-year non-parole period) was manifestly excessive

Decision

On the first ground, the Court of Criminal Appeal found that the sentencing judge had erred in treating the applicant's motive as an aggravating factor going to objective seriousness. Motive is a subjective, not an objective, sentencing consideration. However, the Court noted that this error did not automatically warrant a lesser sentence; under s 6(3) of the Criminal Appeal Act 1912 (NSW), the Court must still reach the positive view that a lesser sentence is warranted in law.

The sentencing judge had found, consistently with the applicant's own evidence, that the device was intended to scare the victim and cause psychological injury, rather than serious physical injury. Had serious physical injury been the intention, the judge would have placed the offending in the worst-case category. The judge also took into account that the device was disguised as a postal article, capable of passing through multiple hands before detonation, and was capable of causing minor burns and hearing damage.

Despite accepting that an error had been established on the first ground, the Court was not persuaded that a lesser sentence was warranted given what it described as "very serious offending", even acknowledging that the undiscounted sentence represented half the maximum penalty. The applicant had filed an affidavit deposing to rehabilitation achievements in custody, including completing a drug program and obtaining TAFE qualifications. The Court accepted that he had gained additional insight but held this was insufficient to displace the overall assessment of seriousness.

Both grounds therefore failed and the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • An error in treating motive as an objective aggravating factor does not automatically result in a lesser sentence on appeal; under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal must still reach the positive view that a lesser sentence is warranted in law.
  • Motive is a subjective sentencing consideration, not an objective one. Conflating the two categories constitutes a legal error at sentencing, even if the error is ultimately not determinative of the appeal outcome.
  • In dismissing the appeal, the Court confirmed that a sentence at or around half the statutory maximum may still be appropriate for serious offending under s 55(a) of the Crimes Act 1900, particularly where the device was disguised to appear innocuous and had the potential to pass through multiple innocent hands.
  • Rehabilitation evidence advanced for the first time on appeal, including completion of drug programs and expressions of remorse, may improve an applicant's prospects but will not necessarily displace a finding that the underlying offending was sufficiently serious to justify the original sentence.
  • Where a sentencing judge declines, in the absence of scientific evidence, to find beyond reasonable doubt that an applicant intended serious physical injury, that constraint on the findings does not remove other objective features of the offence (such as the device's design and delivery method) from the seriousness assessment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 55(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(j)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Dang v R [2013] NSWCCA 246
- Dinsdale v R [2000] HCA 54; 202 CLR 321
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Quealey v R [2010] NSWCCA 116
- R v Bonnet [2013] NSWCCA 234
- R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94