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Court of Criminal Appeal 17 December 2014

McGeown v R

[2014] NSWCCA 314

Also reported as (2014) 247 A Crim R 206
Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE OBJECTIVE SERIOUSNESS OF OFFENCE RELEVANCE OF BRAZEN NATURE OF OFFENCE

Citation: McGeown v R [2014] NSWCCA 314
Court: Court of Criminal Appeal, NSW
Date: 17 December 2014
Judge(s): Leeming JA, Adams J, Fullerton J

Background

The appellant pleaded guilty to one count of aggravated break, enter and commit a serious indictable offence (larceny) under s 112(2) of the Crimes Act 1900 (NSW), with the aggravating circumstance being that she acted in company. Three further offences, including assaulting a police officer, were taken into account on a Form 1.

The offending involved a "ram-raid" on a Sans Souci pharmacy in the early hours of 4 December 2012. A stolen Nissan Navara was driven through the front glass display window, the appellant entered the premises and took prescription drugs and a small amount of cash, and the vehicle was then used in an aggressive escape that involved reversing at speed into two separate marked police vehicles, ultimately disabling the second.

The sentencing judge imposed 4 years imprisonment with a non-parole period of 20 months, which reflected a 50% discount for an early guilty plea and substantial assistance to police. The appellant sought leave to appeal on the single ground that the sentence was manifestly excessive.

  • Whether the sentence of 4 years imprisonment was manifestly excessive in all the circumstances.
  • Whether the sentencing judge erred in characterising the objective seriousness of the offence as above the mid-range.
  • Whether the "brazen" nature of the conduct was a legitimate consideration in assessing objective seriousness.
  • Whether it was appropriate for the sentencing judge to treat "ram-raids" as a distinct class of offending within s 112(2) when assessing relative seriousness.
  • What role the starting point (before discounts) plays in a manifest excess appeal where the applicable reductions are not in dispute.

Decision

The Court granted leave to appeal but dismissed the appeal by a majority of two to one. Leeming JA and Fullerton J agreed that no manifest excess was established; Adams J dissented and would have substituted a lesser sentence.

The majority found no error in the sentencing judge's assessment of objective seriousness as above the mid-range. Leeming JA emphasised that characterising objective seriousness is classically a matter for the first-instance judge, and that an appellate court should not substitute its own evaluation unless the characterisation was not open on the facts. Given the nature of the ram-raid, the extensive damage caused, the applicant's prior record for similar offending, the fact she was on bail and subject to multiple good behaviour bonds, and the conduct during the escape, the assessment was entirely open.

Both Leeming JA and Fullerton J accepted that treating "ram-raids" as a recognised sub-category of s 112(2) offending was appropriate. The offence type carries common features that bear on objective seriousness: use of a stolen vehicle, commission in company, significant property damage, and the practical inability of commercial owners to protect against targeting. Fullerton J also disagreed with Adams J's characterisation of the appellant's involvement as impulsive or opportunistic.

On the question of manifest excess, Leeming JA confirmed that while the starting point is relevant (so that discounts cannot conceal an excessive base), the ultimate question is whether the sentence actually imposed is unreasonable or plainly unjust. The final sentence of 4 years with a 20-month non-parole period, after a 50% reduction, did not meet that threshold. Fullerton J added that no consistent pattern of sentences in comparable ram-raid cases had been established that would ground a manifest excess submission.

Orders Made

The majority (Leeming JA and Fullerton J) ordered:
- Leave to appeal granted
- Appeal dismissed

(Adams J's proposed orders, which would have allowed the appeal, did not prevail. Those proposed orders included substituting a sentence of 2 years 6 months with a non-parole period of 1 year and immediate release on parole.)

Key Takeaways

  • The Court of Criminal Appeal confirmed that characterising objective seriousness is primarily a function of the sentencing judge; appellate intervention requires that the characterisation was not open on the facts, not merely that the appellate court would have reached a different view.
  • A "ram-raid" constitutes a recognised and serious sub-category of offending under s 112(2) of the Crimes Act 1900 (NSW), carrying common aggravating features including use of a stolen vehicle, commission in company, and significant property damage that owners cannot readily prevent.
  • The brazen nature of an offence, including aggressive conduct during an escape involving police vehicles, is a legitimate factor in assessing objective seriousness.
  • Where discounts are not in dispute, the starting point before reduction remains relevant on a manifest excess appeal, but the ultimate question is whether the final sentence imposed is unreasonable or plainly unjust.
  • No established sentencing pattern in comparable ram-raid cases existed at the time of this decision sufficient to ground a manifest excess submission, consistent with the approach in Forbes v R [2009] NSWCCA 292 and the High Court's caution in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112, 112(2), 154G
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 23(1), 23(3), 33, 44

Cases:
- Barbaro v R; Zirilli v R [2014] HCA 2; 305 ALR 323
- Forbes v R [2009] NSWCCA 292
- Graham v R [2009] NSWCCA 212
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Johnson v R [2009] NSWCCA 204
- Kaminic v R [2014] NSWCCA 116
- Leslie v R [2009] NSWCCA 203
- Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357
- McDonald v R [2011] NSWCCA 2
- Mulato v R [2006] NSWCCA 282
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v Adzioski [2013] NSWCCA 69
- R v Lolesio [2014] NSWCCA 219
- R v Reilly; R v Smith [2012] NSWCCA 166
- SZ v R [2007] NSWCCA 19; 168 A Crim R 249
- TYN v R [2009] NSWCCA 146
- Wong v The Queen [2001] HCA 64; 207 CLR 584
- Yang v R [2012] NSWCCA 49