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8
Court of Criminal Appeal 29 August 2016

Abdulrahman v R

[2016] NSWCCA 192

Theft & property
CRIMINAL LAW SENTENCE APPEAL AGGRAVATED BREAK, ENTER AND STEAL SENTENCE

Citation: Abdulrahman v R [2016] NSWCCA 192
Court: NSW Court of Criminal Appeal
Date: 29 August 2016
Judges: Bathurst CJ; Hoeben CJ at CL; Price J

Background

The applicant, a 20-year-old man at the time of the offending, pleaded guilty in the District Court to aggravated break, enter and steal at a dwelling house at Moorebank in April 2014. He and two unknown co-offenders entered the home while the occupant was on holiday, ransacked the premises, and stole cash, mobile phones, and jewellery valued at over $31,000, including items of significant sentimental value. The offenders were recorded on a motion-activated camera, which they subsequently unplugged and smashed.

The applicant also asked the court to take into account on a Form 1 a second aggravated break and enter offence at a Campsie dwelling four days later, during which police caught him hiding in a skip bin nearby. The sentencing judge in the District Court imposed a total term of three years and six months, with a non-parole period of two years, after applying a 25 per cent discount for the utilitarian value of the guilty plea.

The applicant sought leave to appeal to the Court of Criminal Appeal, contending that the sentence was infected by multiple errors and was manifestly excessive.

  • Whether the sentencing judge erred by refusing to grant an adjournment, causing a miscarriage of the sentencing process
  • Whether the judge incorrectly assessed the objective seriousness of the principal offence
  • Whether the judge erred in treating the Form 1 offence as adding significantly to the criminality of the principal offence
  • Whether the judge wrongly treated the applicant's prior record as further aggravating the principal offence
  • Whether the judge impermissibly referred to retribution as a sentencing consideration
  • Whether the judge failed to properly apply the sentencing principles applicable to youthful offenders
  • Whether the sentence was manifestly excessive, and whether a non-custodial or alternative order was available

Decision

Price J (with whom Hoeben CJ at CL agreed) found that several of the grounds were established. The sentencing judge did err in certain respects, including in the treatment of the Form 1 offence, the use of prior record to further aggravate the principal offence, and in passages referencing retribution in a manner inconsistent with established principle.

On the question of youth, Price J accepted that the applicant's age of 20 at the time of offending was a relevant mitigating factor requiring proper weight, and that the sentencing judge had not given it adequate attention. However, after re-exercising the sentencing discretion independently, Price J concluded that no lesser sentence was warranted in law. His Honour's own undiscounted starting point of five years exceeded the judge's undiscounted starting point of four years and eight months, and a non-parole period of less than two years would not have appropriately reflected the criminality involved.

On the question of alternatives to full-time imprisonment, Price J examined the applicant's suitability for community-based orders, including intensive correction orders and good behaviour bonds. Despite the applicant's stable employment, supportive family background, and positive character references, Price J concluded that the circumstances of the offending left no alternative to full-time imprisonment.

Bathurst CJ agreed that no lesser sentence was warranted but wrote separately on a procedural question: once the Court finds that no lesser sentence is warranted in law after re-exercising the sentencing discretion, it is not necessary to state the hypothetical sentence that would have been imposed. In those circumstances, the appropriate order is simply to refuse leave to appeal. Bathurst CJ and Price J therefore took different final positions on the formal outcome, with Bathurst CJ preferring refusal of leave and Price J preferring leave granted but appeal dismissed, with the majority (Hoeben CJ at CL and Price J) granting leave and dismissing the appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that, once sentencing error is established, the appellate court must re-exercise the sentencing discretion independently to determine whether a lesser sentence is warranted in law, consistent with the High Court's approach in Kentwell v R (2014) 252 CLR 601.
  • Where the re-exercised discretion produces a starting point higher than the original sentence, the court will conclude that no lesser sentence is warranted, even if individual errors in the original sentencing process are identified.
  • A sentencing judge's reference to an offender's prior record as a further aggravating feature of the principal offence, and an impermissible reliance on retribution, can constitute error, but those errors will not result in a reduced sentence if the appellate court's independent assessment does not produce a lesser term.
  • Sentencing statistics from the Judicial Commission provide a useful yardstick for consistency but do not constrain the sentencing discretion, as they disclose nothing about the objective seriousness of individual cases or the subjective features of individual offenders.
  • Bathurst CJ clarified that, in cases where the appellate court determines that no lesser sentence is warranted but does not resentence, it is sufficient to state that conclusion without indicating the hypothetical sentence that the re-exercise of discretion would have produced.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112, 113
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 12

Cases
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Mapp v R [2010] NSWCCA 269; (2010) 206 A Crim R 497
- MLP v R [2014] NSWCCA 183
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
- Neal v R (1982) 149 CLR 305
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- R v Dodd (1991) 57 A Crim R 349
- R v Gordon (1994) 71 A Crim R 459
- R v Maher [2004] NSWCCA 177
- R v Mastronardi [2000] NSWCCA 12; (2000) 111 A Crim R 306
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435
- Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14