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Court of Criminal Appeal 19 August 2016

Faleafga v R

[2016] NSWCCA 178

Theft & propertyFirearms & weapons
CRIMINAL LAW WHETHER SENTENCE MANIFESTLY EXCESSIVE APPLICATION OF HENRY GUIDELINE

Citation: Faleafga v R [2016] NSWCCA 178
Court: NSW Court of Criminal Appeal
Date: 19 August 2016
Judge(s): Hoeben CJ at CL, Button J, N Adams J (all agreeing)

Background

The applicant, a 19-year-old man of Indigenous and Samoan descent, was convicted of armed robbery contrary to s 97(1) of the Crimes Act 1900 (NSW) after entering a petrol station in Punchbowl in the early hours of 11 June 2014. He broke through a locked glass sliding door and threatened the sole employee with an improvised flamethrower (an aerosol can and cigarette lighter), taking $400 from the cash register before fleeing.

The applicant was arrested in October 2014 when his DNA was linked to the offence. He had, by that point, already moved to Dubbo, sought legal advice, and commenced a programme of counselling and rehabilitation. He pleaded guilty at the Local Court in March 2015 and was sentenced in the District Court on 2 July 2015 to four years' imprisonment with a non-parole period of two years and three months.

The applicant sought leave to appeal against that sentence, arguing the sentencing judge failed to give adequate weight to relevant mitigating factors and that the sentence was manifestly excessive.

  • Whether the sentencing judge failed to take into account, or gave insufficient weight to, relevant mitigating factors, including the applicant's deprived childhood, Indigenous background, youth, genuine remorse, and significant post-offence rehabilitation.
  • Whether the resulting sentence of four years' imprisonment was manifestly excessive.
  • How the Henry guideline judgment for armed robbery applies to an offender with this profile.

Decision

N Adams J, with whom Hoeben CJ at CL and Button J agreed, found that the sentencing judge had erred by not giving adequate weight to the applicant's significant subjective circumstances. Those circumstances included a deeply troubled childhood marked by family violence, instability, and exposure to substance abuse, as well as the applicant's youth, his early and genuine plea of guilty, and the substantial rehabilitation steps he had taken between the offence and sentencing.

The Court applied the principles from Bugmy v The Queen (2013) 249 CLR 571, which require that the effects of profound childhood deprivation receive "full weight" at every sentencing decision, regardless of whether offending has continued. The Court treated the applicant's background, his Indigenous heritage, and the structural disadvantages he faced as matters requiring genuine consideration, not merely formal acknowledgment.

On the Henry guideline, the Court accepted that the offence was serious, involving a weapon and causing real fear to the victim, but concluded that the weight of mitigating factors brought the appropriate sentence below the range suggested in the original sentence. The Court also found special circumstances existed, because this was the applicant's first time in custody and because continued rehabilitation required an extended parole period.

Having identified error in the exercise of the sentencing discretion, the Court re-sentenced the applicant. The original sentence was quashed and replaced with a total term of three years and two months, with a non-parole period of 20 months.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed; sentence imposed by Garling ADCJ on 2 July 2015 quashed.
  • Applicant re-sentenced to imprisonment comprising a non-parole period of 20 months commencing 6 May 2015 and expiring 5 January 2017, and a balance of term of 18 months expiring 5 July 2018 (total effective sentence: three years and two months).
  • First eligible parole date: 5 January 2017.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the principles in Bugmy v The Queen require sentencing courts to give full weight to the effects of a deprived and violent childhood on every sentencing occasion, not merely where the offender has limited prior offending.
  • Under the Henry guideline for armed robbery, significant mitigating factors, including youth, genuine remorse, early plea, and demonstrated rehabilitation, can bring an appropriate sentence below the guideline range for what is otherwise a serious offence.
  • A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 is available where an offender is serving a first custodial sentence and needs an extended supervised period upon release to consolidate rehabilitation.
  • Post-offence rehabilitation, particularly where it predates arrest and reflects the offender's own initiative, carries significant weight as a mitigating factor in sentencing.
  • Insufficient weight given to relevant subjective factors can constitute error justifying appellate intervention under the House v The King (1936) 55 CLR 499 principles, even where the sentence imposed was not obviously excessive on its face.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (armed robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A (purposes of sentencing), 7, 9, 44(2B) (special circumstances)

Cases
- R v Henry (1999) 46 NSWLR 346 (armed robbery guideline judgment)
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (childhood deprivation in sentencing)
- Munda v Western Australia [2013] HCA 38; 249 CLR 600
- House v The King (1936) 55 CLR 499 (appellate review of sentencing discretion)
- Kentwell v The Queen [2014] HCA 37; 88 ALJR 947
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Bloomfield v R [2013] NSWCCA 315
- Dylan Craig Lang v R [2013] NSWCCA 29
- Ingrey v R [2016] NSWCCA 31
- Legge v R [2007] NSWCCA 244
- R v Fidow [2004] NSWCCA 172