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Court of Criminal Appeal 14 July 2017

See v R

[2017] NSWCCA 165

Fraud & dishonestyTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE OFFENDER WITH MENTAL ILLNESS WHETHER PROPER REGARD TO REMORSE NO POINT OF PRINCIPAL

Citation: See v R [2017] NSWCCA 165
Court: NSW Court of Criminal Appeal
Date: 14 July 2017
Judge(s): Hoeben CJ at CL, R A Hulme J, Wilson J (all agreeing)

Background

The applicant was sentenced in the District Court on 3 June 2016 for 13 dishonesty and firearms offences, with a further 23 offences taken into account on a Form 1. The offending involved a sophisticated, professionally organised criminal enterprise of burglary and theft conducted with the applicant's father across residential and commercial premises in Sydney between 2010 and 2011. Property stolen or dealt with was valued at many millions of dollars. Police found over $2.3 million in cash, 145 kg of silver bars, approximately 100 ounces of gold, numerous firearms, and thousands of pieces of jewellery in a storage unit rented under a false name.

The applicant had also committed related offences in Victoria, for which he was separately sentenced to four years imprisonment with a non-parole period of two years. After serving that Victorian sentence and being extradited to New South Wales, he received an aggregate NSW sentence of 12 years and 6 months, with a non-parole period of 7 years and 6 months, commencing 18 January 2013.

The applicant sought leave to appeal against the NSW sentence, raising four grounds: inadequate regard to totality (in light of the Victorian sentence), inadequate consideration of his mental illness, insufficient weight given to his remorse, and an assertion that the sentence was manifestly excessive.

  • Whether the sentencing judge gave adequate consideration to the principle of totality when imposing the NSW sentence alongside the existing Victorian sentence
  • Whether the sentencing judge gave proper weight to the applicant's mental illness as a mitigating factor
  • Whether adequate regard was given to the applicant's remorse and prospects of rehabilitation
  • Whether the aggregate sentence was, as a result of any such errors, manifestly excessive

Decision

The Court of Criminal Appeal rejected all four grounds and dismissed the appeal, with all three judges agreeing in reasons delivered by Wilson J.

On totality, the Court found that the sentencing judge had clearly turned his mind to the Victorian sentence and to the principles governing concurrent or consecutive sentences across jurisdictions. The relevant principles, drawn from cases including Mill v The Queen and DPP (Commonwealth) v De La Rosa, require the overall sentence to be just and appropriate having regard to the totality of the offending. The Court found no error in the sentencing judge's approach to this question.

On mental illness, the Court found that the sentencing judge had expressly acknowledged and engaged with the applicant's psychiatric condition in his reasons. The sentencing judge accepted that mental illness was a relevant mitigating factor but was entitled, on the evidence before him, to give it only limited weight given the nature, sophistication and duration of the offending.

On remorse and rehabilitation, the Court noted that the sentencing judge had considered the applicant's expressions of remorse but was not obliged to accept them uncritically, particularly in the context of a long and entrenched history of recidivism. Expert evidence before the court was cautiously worded: one report noted that "a few further hiccups" could not be ruled out, and another observed that without ongoing treatment and monitoring the applicant would remain at risk of relapse and reoffending. The sentencing judge's guarded assessment of rehabilitation prospects was found to be well open on that evidence.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge dealing with NSW offences where an interstate sentence already exists must have regard to totality, but is not required to structure the NSW sentence so as to produce a specific aggregate outcome.
  • Adequate engagement with mental illness as a mitigating factor does not require a sentencing judge to give it determinative weight; the nature and sophistication of the offending is a legitimate counterweight.
  • Where expert evidence on rehabilitation is expressed in qualified or cautious terms, a sentencing judge's guarded assessment of rehabilitation prospects will be difficult to displace on appeal.
  • No error was established in the sentencing judge's treatment of remorse where the applicant had a long history of recidivism and expert opinion did not firmly support optimistic rehabilitation conclusions.
  • The court characterised the applicant as "an intelligent and dedicated thief who committed crimes of considerable sophistication," and held that the aggregate sentence of 12 years and 6 months fell within the proper exercise of the sentencing discretion.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW), including ss 112(2)(a), 115, 193B(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Firearms Act 1996 (NSW), s 7(1)

Cases:
- DPP (Commonwealth) v De La Rosa (2010) 205 A Crim R 1; [2010] NSWCCA 194
- King v R [2015] NSWCCA 99
- Mill v The Queen (1988) 166 CLR 59
- R v Baker [2000] NSWCCA 85
- R v Ponfield (1999) 48 NSWLR 327
- R v Todd [1982] 2 NSWLR 517