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11
Court of Criminal Appeal 23 October 2014

Skocic v R

[2014] NSWCCA 225

Theft & propertyPublic order & justice offences
APPEAL SENTENCE APPLICATION FOR LEAVE TO APPEAL APPLICATION FOR LEAVE REFUSED APPEAL SENTENCE USE OF SENTENCING STATISTICS

Citation: Skocic v R [2014] NSWCCA 225
Court: NSW Court of Criminal Appeal
Date: 23 October 2014
Judge(s): Macfarlan JA, Fullerton J, Bellew J (unanimous)

Background

Following a joint trial, the applicant was convicted by jury of two offences arising from events on 3 April 2012 at a residential property in Narrabeen. The first offence was break and enter in company and steal, contrary to s 112(2) of the Crimes Act 1900 (maximum penalty: 20 years imprisonment; standard non-parole period: 5 years). The second was recklessly damage property in company, contrary to s 195(1A)(a) (maximum penalty: 6 years).

The sentencing judge found that the applicant and a co-offender entered an unoccupied dwelling, removed a kitchen cabinet, and caused approximately $30,000 in damage while dismantling fixtures. The offending was described as planned, calculated, and brazen. The applicant was on bail and subject to a conditional liberty bond at the time.

The applicant received a total sentence of 3 years and 10 months imprisonment, with a non-parole period of 2 years and 4 months. He sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether sentencing statistics showing that 75 per cent of offenders sentenced for the same offence received lesser sentences were, on their own, sufficient to establish manifest excess.
  • Whether the overall sentence was manifestly excessive having regard to all relevant sentencing factors.

Decision

The applicant's primary submission was that the sentencing statistics alone demonstrated manifest excess. Bellew J (with whom Macfarlan JA and Fullerton J agreed) rejected this approach outright. Consistency in sentencing does not require, and is not demonstrated by, numerical equivalence. Bare statistics reveal nothing about the particular circumstances of the offending or the individual offender.

The Court confirmed the established principle that sentences must be determined according to principle, not by matching them to statistical averages. Relying on statistics without more is contrary to that principle.

Bellew J also dismissed the applicant's two supplementary arguments: that his prior criminal history did not justify the sentence, and that the low value and recovery of the stolen goods placed the offending in the lower range. Both arguments impermissibly isolated individual mitigating factors from the full sentencing picture. The sentencing judge had made unchallenged findings that the offending was planned, that the applicant was on conditional liberty, that he showed no remorse, and that his rehabilitation prospects were guarded. The applicant had also proceeded to trial and received no discount for a utilitarian plea of guilty.

In all the circumstances, the Court found the sentence was well within the appropriate discretionary range, particularly given the maximum penalty and standard non-parole period applicable to count 1. The submissions were described as completely without merit.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • Sentencing statistics showing that a majority of offenders received lesser sentences do not, without more, establish that a sentence is manifestly excessive.
  • Consistency in sentencing requires adherence to principle, not numerical equivalence with other cases; bare statistics say nothing about the circumstances of a particular offence or offender.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that a manifest excess argument must engage with all relevant sentencing factors holistically, not selectively highlight mitigating features in isolation.
  • Aggravating factors such as offending while on conditional liberty, absence of remorse, and guarded rehabilitation prospects weigh significantly against a finding of excess, particularly where none of the sentencing judge's findings were challenged on appeal.
  • An applicant who proceeds to trial receives no sentencing discount for the utilitarian value of a guilty plea, and this properly forms part of the sentencing calculus when assessing whether a sentence is excessive.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(2), 195(1A)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9

Cases
- Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 305 ALR 323
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
- Jolly v R [2013] NSWCCA 76; (2013) 229 A Crim R 198
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- MLP v R [2014] NSWCCA 183
- R v Nikolovska [2010] NSWCCA 153
- RLS v R [2012] NSWCCA 236