Citation: Ridgeway v R [2016] NSWCCA 184
Court: NSW Court of Criminal Appeal
Date: 23 August 2016
Judges: Payne JA (principal judgment); RA Hulme J and Adamson J (agreeing)
Background
The appellant was sentenced in the District Court on 1 May 2015 for three offences: two committed in November 2013 (aggravated break and enter with intent to commit larceny, and larceny) and one committed in October 2012 (a further aggravated break and enter with intent to commit larceny). She pleaded guilty to all three. The 2013 sentences had been completed by the time of the appeal.
The 2012 offence involved the appellant entering an occupied home in Waterloo while the occupants slept, stealing a laptop, mobile phones, a wallet, a ring, a bankcard, a backpack, and cash. Police matched her fingerprints to the scene within days of the offence in late October 2012. Despite the appellant being in custody from 2 November 2012 to 2 July 2013 on an unrelated parole matter, she was not charged with the 2012 break and enter until 2 December 2013.
The appeal concerned only the sentence for the 2012 offence, for which the District Court imposed four years' imprisonment with a non-parole period of two years and nine months, commencing 5 November 2014.
Legal Issues
- Whether the sentencing judge failed to make an adequate assessment of the objective seriousness of the offence
- Whether the sentencing judge erred in finding that the mitigating effect of the prosecution delay was subsumed by other sentencing considerations
- Whether the sentence imposed was manifestly excessive
Decision
The Court of Criminal Appeal found substance in all three grounds and granted leave to appeal. On the first ground, the Court held that the sentencing remarks did not reveal how the judge applied the facts of the offending to any assessment of objective seriousness. A sentencing judge's duty to assess objective seriousness is a critical component of the sentencing process, as confirmed in R v Campbell [2014] NSWCCA 102 and R v Van Ryn [2016] NSWCCA 1, and an absence of that assessment on the face of the remarks constitutes error.
On the second ground, the Court accepted that the delay in prosecution was a genuine mitigating factor. The Crown had conceded there was no proper explanation for the delay. The sentencing judge had acknowledged the delay warranted some mitigation but then treated it as having been "taken over" by other sentencing considerations. The Court found this approach involved error: unexplained prosecution delay is a discrete mitigating factor that must be given real weight, not neutralised by aggregating other matters.
Because error was established, the Court re-sentenced the appellant. Taking into account the objective features of the offence (which the Court assessed as falling in the mid-range of seriousness for an offence with a 20-year maximum), the appellant's significant criminal history, relevant subjective circumstances including a troubled background and psychological report, her guilty plea, and the unexplained delay, the Court concluded that a total sentence of three years' imprisonment was appropriate.
The Court also found special circumstances warranting a departure from the standard ratio of non-parole period to total sentence, in order to reflect the total effective sentence across both the 2012 and 2013 matters. The non-parole period was fixed at two years, giving a balance of term of twelve months.
Orders Made
- Leave to appeal granted
- Appeal allowed
- The District Court sentence for the October 2012 offence (imposed 1 May 2015) quashed
- In substitution: imprisonment for 3 years commencing 5 November 2014 and expiring 4 November 2017, comprising a non-parole period of 2 years (expiring 4 November 2016) and a balance of term of 12 months (expiring 4 November 2017)
- The appellant to be released on parole at the end of the non-parole period, subject to standard conditions including supervision by the Probation and Parole Service
Key Takeaways
- A sentencing judge must expressly assess the objective seriousness of an offence; sentencing remarks that set out the facts but do not apply them to such an assessment disclose appellable error, as confirmed in R v Van Ryn and R v Campbell.
- Unexplained prosecution delay is a discrete mitigating factor in sentencing. Where the Crown concedes there is no proper explanation for delay, that factor must be given genuine independent weight and cannot simply be absorbed into a general balancing exercise.
- Re-sentencing after identified error requires the appellate court to conduct its own assessment of objective seriousness, applying the full range of relevant subjective and objective factors afresh.
- Special circumstances justifying a departure from the standard non-parole period ratio can arise from the need to align the ratio with the total effective sentence across multiple related matters.
- The Court of Criminal Appeal confirmed that an offence of aggravated break and enter under s 112(2) of the Crimes Act 1900 (NSW), which carries a 20-year maximum and a 5-year standard non-parole period, requires careful and explicit calibration of objective seriousness as a foundation for the sentencing exercise.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) ss 112, 117
- Criminal Appeal Act 1912 (NSW) s 5
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 9
- Crimes (Administration of Sentences) Act 1999 (NSW)
Cases:
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
- Blanco v R [1999] NSWCCA 121; 106 A Crim R 303
- Delaney v R; R v Delaney [2013] NSWCCA 150; 230 A Crim R 581
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Campbell [2014] NSWCCA 102
- R v Gay [2002] NSWCCA 6; 49 ATR 78
- R v Schwabegger [1998] 4 VR 649
- R v Van Ryn [2016] NSWCCA 1
- Sabra v R [2015] NSWCCA 38