Citation: McCabe v R [2016] NSWCCA 7
Court: NSW Court of Criminal Appeal
Date: 10 February 2016
Judges: Meagher JA, Rothman J, Bellew J (all agreeing)
Background
The applicant pleaded guilty in the Local Court to break enter and steal, contrary to s 112(1)(a) of the Crimes Act 1900 (NSW). The offence occurred on 12 June 2014, when the applicant smashed a kitchen window to enter a unit in Harris Park, took items valued at approximately $1,000, and was caught by police as he left the building. All items were recovered and returned to the owners.
The applicant was committed to the District Court for sentence, where he received a non-parole period of 2 years and 6 months, with an additional term of 2 years. The sentencing judge applied a 25% discount for the guilty plea and found special circumstances justifying a departure from the standard ratio between the non-parole period and the head sentence.
The applicant sought leave to appeal on two grounds: that the sentencing judge impermissibly took the applicant's criminal history into account when assessing the objective seriousness of the offence, and that the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred by factoring the applicant's prior criminal history into the assessment of the objective seriousness of the offence.
- Whether the sentence ultimately imposed was manifestly excessive.
- How to interpret ex tempore sentencing remarks that have subsequently been revised by the sentencing judge.
Decision
Ground 1: Error in assessing objective seriousness
The principle of proportionality, established in Veen v The Queen (No 2) and confirmed in subsequent authority, requires that the upper boundary of a proportionate sentence be set by the objective circumstances of the offence itself. Prior convictions do not form part of those objective circumstances. The sentencing judge's remarks, taken at face value, stated that he had concluded the offending was "slightly below the mid-range of objective seriousness by taking into account that past criminal history." The Court of Criminal Appeal found that this language could only be read one way: the criminal history had been used to assess objective seriousness, which is an error.
The Crown argued that the remarks were delivered ex tempore and should not be subjected to minute analysis, and that the sentencing judge's express reference to Veen (No 2) suggested he had not intended to depart from that authority. The Court acknowledged the general caution against parsing ex tempore remarks, but found that this caution did not apply here. The sentencing remarks had been revised by the sentencing judge before delivery, meaning the Court was bound to give effect to the plain language actually used. There was no basis to substitute the word "before" for "by," as the Crown effectively invited, and no suggestion of a slip.
Re-sentencing
Having found error, the Court re-sentenced the applicant. The offending was characterised as typical of break-enter conduct, committed while the applicant was on bail, with no ransacking and full recovery of property. The applicant had a lengthy history of similar offending and previous rehabilitation efforts had not succeeded. However, the Court accepted evidence of the applicant's mental illness, which reduced his moral culpability and rendered him an inappropriate vehicle for general deterrence. Some prospect of rehabilitation was also found to exist. The appropriate starting point was 4 years and 6 months, reduced by 25% for the guilty plea to a total sentence of 3 years and 4 months, with a finding of special circumstances applied at the same ratio as the original sentencing judge.
Orders Made
- Leave to appeal granted.
- Appeal allowed.
- The sentence imposed in the District Court on 17 February 2015 is quashed.
- The applicant is re-sentenced to a non-parole period of 1 year and 10 months imprisonment, commencing 20 November 2014 and expiring 19 September 2016, with a balance of term of 1 year and 6 months commencing 20 September 2016 and expiring 19 March 2018.
- Total sentence: 3 years and 4 months imprisonment.
Key Takeaways
- A sentencing judge must assess the objective seriousness of an offence by reference to the objective circumstances of the offending itself. Prior convictions cannot be imported into that assessment, as established by Veen v The Queen (No 2) and affirmed here.
- The Court of Criminal Appeal declined to extend the usual latitude given to ex tempore remarks where those remarks had been subsequently revised by the sentencing judge. Revision signals deliberateness, and the revised text must be read according to its plain meaning.
- Where revised sentencing remarks contain an unambiguous statement of error, it is not open to a court on appeal to substitute different words simply because the judge had cited authority inconsistent with the error. The absence of any suggestion of a slip was decisive.
- Mental illness, where established by evidence, can reduce an offender's moral culpability and diminish the weight accorded to general deterrence as a sentencing purpose, even in the presence of a lengthy history of similar offending.
- A significant prior criminal history remains relevant to sentencing, but its permissible role is in adjusting the sentence within the range set by objective seriousness, not in fixing that range in the first place.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 112(1)(a)
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
Cases
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Gommesen v R [2012] NSWCCA 226; 62 MVR 196
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- Warner v R [2013] NSWCCA 10