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2
Court of Criminal Appeal 2 April 2015

Avery v R

[2015] NSWCCA 50

Assault & violenceTheft & property
CRIMINAL LAW APPEAL WHETHER SENTENCE MANIFESTLY EXCESSIVE LEAVE TO APPEAL GRANTED APPEAL DISMISSED. CRIMINAL LAW APPEAL

Citation: Avery v R [2015] NSWCCA 50
Court: NSW Court of Criminal Appeal
Date: 2 April 2015
Judges: R A Hulme J, Davies J, Bellew J (unanimous)

Background

The applicant pleaded guilty in the Grafton Local Court to two counts of aggravated break and enter and commit a serious indictable offence, and one count of being carried in a conveyance taken without the owner's consent. The offending spanned approximately two years and included a break-in at a golf club involving the theft of alcohol, being present in a stolen vehicle, and participation in a violent home invasion in which two occupants were seriously assaulted.

The sentences were imposed by Judge Wells in the District Court in December 2013. The total effective sentence was four years and four months' imprisonment with a non-parole period of two years and six months. The applicant subsequently sought leave to appeal on eight grounds.

  • Whether the sentencing judge made erroneous factual findings about the applicant's participation in a joint criminal enterprise
  • Whether the sentencing judge failed to have regard to evidence of the applicant's intoxication at the time of the offending
  • Whether the sentencing judge gave proper effect to a finding of special circumstances (which allows the non-parole period to be reduced below the statutory default)
  • Whether the discount applied for the applicant's assistance to authorities was appropriate
  • Whether the overall sentence was manifestly excessive

Decision

The Court of Criminal Appeal dismissed all grounds of appeal. On the factual findings ground, the Court noted that submissions now put on the applicant's behalf had not been raised before the sentencing judge. The Court confirmed the established principle that a party is bound by the conduct of their case at first instance, and declined to entertain arguments that were not put to the sentencing judge at the time.

On the intoxication and special circumstances grounds, the Court found no error in the sentencing judge's approach. Her Honour had taken the applicant's background and relative youth into account, and had already made a substantial variation to the non-parole period in recognition of special circumstances. The discount applied for the guilty plea and assistance to authorities was characterised by the Court as generous.

On the question of manifest excess, the Court observed that the applicant's submissions understated the seriousness of the offending. The break-in at count 1 involved planning (disguises were worn) and physical violence. The home invasion at count 3 was described as objectively serious, with severe physical and psychological harm inflicted on both occupants. The applicant also had a substantial criminal history for offending of a similar nature, which gave considerations of general and personal deterrence particular weight. The Court was not persuaded that the sentences were unreasonable or plainly unjust, applying the test from Dinsdale v R.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A party on appeal is bound by the manner in which their case was conducted at first instance. Arguments not raised before the sentencing judge will not ordinarily be entertained on appeal.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal applied the Dinsdale v R test, requiring that a sentence be unreasonable or plainly unjust before appellate intervention is warranted.
  • A finding of special circumstances does not automatically produce a particular outcome; the Court confirmed that her Honour had already given substantial effect to that finding through a significant reduction in the non-parole period.
  • Where an offender has a substantial criminal history for similar offending, considerations of general and personal deterrence carry significant weight in sentencing, even where mitigating factors such as youth and disadvantaged background are also present.
  • Participation in a joint criminal enterprise is assessed against what each offender actually did; the Court noted that the applicant's own conduct in the home invasion offence independently reflected serious criminality.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(2), 154A(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- Hutchinson v R [2014] NSWCCA 371
- Kendall v R [2015] NSWCCA 13
- LB v R [2013] NSWCCA 70
- R v Cahyadi [2007] NSWCCA 1; (2007) 168 A Crim R 41
- R v Ellis (1986) 6 NSWLR 603
- R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415
- R v Fernando (1992) 76 A Crim R 58
- R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
- R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38
- SL v R [2015] NSWCCA 35
- SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
- Zreika v R [2012] NSWCCA 44