Citation: Wootton v R [2014] NSWCCA 86
Court: Court of Criminal Appeal, NSW
Date: 21 May 2014
Judges: Gleeson JA, RA Hulme J, Campbell J (all agreeing)
Background
The appellant had been sentenced in the District Court to 10 years and 9 months imprisonment, with a non-parole period of 7 years, for specially aggravated breaking and entering a dwelling and committing robbery while armed with a .22 pump-action rifle. The offence involved a violent home invasion at Katoomba in August 2010, carried out with two co-offenders. During the attack, a shotgun was fired through the front door, wounding the victim, further shots were fired inside the house, and the victim was struck on the head with a gun butt, all while the victim's partner and two-month-old baby were present.
The appellant entered a late guilty plea and received a 10 percent discount. The sentencing judge assessed the objective seriousness as above the mid-range and identified several aggravating factors, including that the appellant was on conditional liberty at the time of the offence.
In her remarks on general deterrence, the sentencing judge stated that "gun crimes are on the increase" and that police and the community expect sentences in firearm offences to send a clear message. The appellant challenged those remarks on appeal.
Legal Issues
- Whether the sentencing judge's finding that gun crimes are on the rise, made without giving the appellant an opportunity to make submissions, constituted a denial of procedural fairness
- Whether there was any evidentiary basis for the finding that gun crimes were becoming increasingly prevalent
- Whether the finding caused the sentencing judge to give undue weight to general deterrence
- Whether there was evidence to support the observation that police lives are put at significant risk in such circumstances
- Whether, if error were established, a lesser sentence was nonetheless warranted in law under s 6(3) of the Criminal Appeal Act 1912 (NSW)
Decision
Grounds 1 to 3: Prevalence and procedural fairness
Campbell J (with Gleeson JA and Hulme J agreeing) examined whether the sentencing judge's remarks about increasing gun crime should be understood as a finding that prevalence had increased to a degree justifying an upward departure from existing sentencing patterns. The Court held that the remarks did not go that far. They were better understood as a conventional invocation of general deterrence in the context of a gravely serious firearms offence, rather than an assertion that current sentencing levels were insufficient and needed to be raised. Accordingly, neither the procedural fairness obligation to warn counsel nor the requirement for supporting evidence, as described in cases like R v House, was triggered.
The Court accepted that if a sentencing judge were to rely on increasing prevalence as a basis for imposing sentences above the existing range, there would be a genuine procedural fairness concern and an evidentiary requirement. However, the remarks in this case did not cross that line. The appeal on grounds 1 to 3 therefore failed.
Ground 4: Police safety
The Court found that the observation about risks to police lives was a general statement about the dangers that armed home invasions pose to responding officers. It was not a factual finding unsupported by evidence. This ground was also dismissed.
Reference to police expectations
Despite dismissing the appeal, Campbell J noted that the sentencing judge's reference to the "expectation of the police service" about appropriate sentences was inapt. Following the reasoning in Barbaro v The Queen [2014] HCA 2, the views of the police about what sentence is appropriate carry no more weight than prosecutorial opinion on the available range, and should not have been invoked.
Section 6(3) safety net
The Court went on to conclude that even if any error had been established, no lesser sentence was warranted in law. The offending was premeditated, involved the actual discharge of multiple loaded firearms inside a family home, caused gunshot wounds to the victim, and was committed while the appellant was on conditional liberty. These features supported the sentence imposed.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A sentencing court's general remarks about gun crime and deterrence do not necessarily amount to a finding that prevalence has increased sufficiently to justify sentences above the existing range; the distinction between the two matters for both procedural fairness and evidentiary requirements.
- Where a sentencing judge does purport to sentence above an established pattern on the basis of increasing prevalence, procedural fairness requires that counsel be given an opportunity to address the point and that there be proper evidentiary support for the finding.
- Invoking "police expectation" as a factor supporting the level of a sentence is inconsistent with the High Court's reasoning in Barbaro v The Queen [2014] HCA 2, which confirms that institutional opinion about appropriate sentencing ranges is not a relevant sentencing consideration.
- Under s 6(3) of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal may decline to disturb a sentence even where an error has been identified, if no lesser sentence is warranted in law.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the objective gravity of a premeditated, armed home invasion in which firearms were discharged and a victim injured, committed while the offender was on conditional liberty, fully supported a sentence in the range imposed.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 112
- Criminal Appeal Act 1912 (NSW), s 6
Cases
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2
- El Masri v R [2014] NSWCCA 13
- House v The King (1936) 55 CLR 499
- Nguyen v R; Phommalysack v R (2011) 31 VR 673; [2011] VSCA 32
- R v H (1980) 3 A Crim R 53
- R v House [2005] NSWCCA 88
- R v MacNeil-Brown (2008) 20 VR 677; [2008] VSCA 190
- Trajkovski v The Queen [2011] VSCA 170
- WCB v The Queen (2010) 2 VR 483