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7
Court of Criminal Appeal 11 August 2017

BB v R

[2017] NSWCCA 189

Sexual offencesTheft & property
CRIMINAL LAW APPEAL SENTENCE ACCUMULATION TOTALITY APPEAL

Citation: BB v R [2017] NSWCCA 189
Court: NSW Court of Criminal Appeal
Date: 11 August 2017
Judges: Bathurst CJ, McCallum J, Bellew J

Background

The applicant pleaded guilty in the District Court to breaking and entering a dwelling house and committing a serious indictable offence in circumstances of aggravation, contrary to s 112(2) of the Crimes Act 1900 (NSW). The offending involved the applicant entering the home of a 15-year-old girl while she slept and indecently assaulting her. The victim's screams eventually prompted the applicant to flee, and he was arrested nearby a short time later.

Judge Toner SC sentenced the applicant on 17 February 2016 to a non-parole period of four years imprisonment with an additional term of three years. The applicant sought leave to appeal against that sentence on two grounds: that the degree of accumulation of sentences was inadequate, and that the total sentence was manifestly excessive.

  • Whether the sentencing judge imposed an inadequate degree of accumulation when fixing the non-parole period and additional term.
  • Whether the total sentence of seven years imprisonment (four years non-parole, three years additional term) was manifestly excessive in all the circumstances.
  • Whether a comparison with sentences imposed in two other cases of broadly similar offending supported a finding of manifest excess.

Decision

The Court granted leave to appeal but dismissed both grounds. On the first ground, the Court found no error in the sentencing judge's approach to accumulation. The relationship between the non-parole period and the additional term was not shown to be outside the proper exercise of the sentencing discretion.

On the question of manifest excess, Bellew J (with whom Bathurst CJ and McCallum J agreed) examined the objective seriousness of the offending. Relevant factors included the vulnerability of the victim, who was asleep in her own home, the premeditated nature of the entry, the applicant's prior criminal history including similar offending, and his drug use at the time.

The applicant sought to rely on two comparable cases, Andrews v R [2011] NSWCCA 24 and Smith v R [2013] NSWCCA 209, to demonstrate that the sentence was out of step with comparable sentences. The Court rejected this approach. Bellew J noted that each of those cases was distinguishable: the offending in Andrews was of lesser objective severity and involved an offender with an intellectual impairment causally connected to the offending, while the facts in Smith involved a different form of serious indictable offence and included favourable rehabilitation findings not present here.

The Court further observed, following Smith itself, that it is difficult to establish manifest excess by reference to only two comparable cases, which represent a small fraction of all relevant decisions. The sentence was not manifestly excessive in all the circumstances.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence of seven years imprisonment (four years non-parole) for break-and-enter with indecent assault on a sleeping 15-year-old was not manifestly excessive, having regard to the objective gravity of the offence, the victim's vulnerability, and the applicant's relevant prior history.
  • A finding of manifest excess cannot readily be established by comparing a sentence to only two other cases; such cases represent a small percentage of relevant sentencing decisions and their utility is further limited when they are factually distinguishable.
  • Where cases offered as sentencing comparators involve different objective circumstances, different subjective features of the offender, or different forms of the relevant serious indictable offence, their value as comparators is materially diminished.
  • Premeditation in the commission of a break-and-enter sexual offence is a significant aggravating factor that the sentencing court is entitled to weigh heavily.
  • The standard appellate principle from House v The King (1936) 55 CLR 499 applies: the Court of Criminal Appeal will only intervene where an error in the exercise of the sentencing discretion is established, and disagreement with the sentence imposed does not, of itself, constitute such error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)

Cases:
- Andrews v R [2011] NSWCCA 24
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- MLP v R [2014] NSWCCA 183
- Pannowitz v R [2016] NSWCCA 13
- RLS v R [2012] NSWCCA 236
- Smith v R [2013] NSWCCA 209