Citation: Carter v R [2018] NSWCCA 138
Court: NSW Court of Criminal Appeal
Date: 9 July 2018
Judges: Leeming JA, Fullerton J, McCallum J
Background
The applicant pleaded guilty in the District Court to 11 offences arising from a coordinated criminal enterprise targeting Catholic schools in Western Sydney between mid-2014 and early 2015. The group broke into schools after dark to steal Apple devices, which they then reset and sold online. A further eight offences of the same type were taken into account on a Form 1.
The applicant was sentenced alongside three co-offenders who had participated in the same scheme. At first instance, he received an aggregate sentence of six years' imprisonment with a non-parole period of three years, commencing 17 April 2016. A 25% discount was applied for the utilitarian value of his early guilty plea.
The applicant, who was self-represented on appeal, challenged the sentence on two grounds: first, that the sentencing judge erred in his approach to parity with the co-offenders; and second, that the judge failed to properly take into account relevant subjective circumstances, particularly the hardship that imprisonment imposed on his family.
Legal Issues
- Whether the sentencing judge made a factual error in characterising the disabilities of the applicant's brothers, and whether that error affected the weight given to family hardship as a subjective factor.
- Whether the judge's findings on the applicant's subjective case were properly reflected in the sentence ultimately imposed.
- Whether the sentence gave rise to a justifiable sense of grievance when compared with the sentences imposed on the co-offenders (the parity ground).
- What the correct approach to family hardship is as a mitigating factor in sentencing, and whether the "restrictive approach" endorsed in earlier authority should continue to be followed.
Decision
Ground 2 (family hardship and subjective case) was established. The sentencing judge referred only to Tourette's syndrome when describing the conditions affecting the applicant's two brothers, despite evidence before the court that both brothers suffered from multiple disabilities, including autism. The Court of Criminal Appeal accepted that this was a factual error. Because that error potentially affected how much weight was given to family hardship in the sentencing exercise, it constituted a demonstrated error justifying resentencing.
Ground 1 (parity) was not established. The Court applied the established principle that a parity ground should be addressed after other grounds, on the assumption that the sentence is otherwise appropriate. Having found error on ground 2 and determined that resentencing was required, the Court did not need to make any further finding that the original sentence produced an unjustifiable disparity with those of the co-offenders.
On resentencing, the Court reduced the aggregate term to five years' imprisonment with a non-parole period of two years and six months. The reduction reflected a slightly greater degree of concurrency among the indicative sentences, together with proper weight being given to the evidence of family hardship. The Court preserved the finding of special circumstances warranting a departure from the statutory ratio between the non-parole period and the balance of term.
The broader question of sentencing principle was left open. McCallum J examined whether the courts should continue to take a "restrictive approach" to family hardship as a mitigating factor. Both Leeming JA and Fullerton J declined to express a view on that question, noting that the applicant was self-represented and the Crown had not been heard on the relevant line of authority. The issue therefore remains unresolved by this decision.
Orders Made
- Leave to appeal granted.
- Sentence imposed at first instance quashed.
- In substitution, the applicant was sentenced to an aggregate term of imprisonment of five years, with a non-parole period of two years and six months commencing 17 April 2016 and expiring 16 October 2018, and a balance of term of two years and six months expiring 16 April 2021.
- First eligible date for parole: 16 October 2018.
Key Takeaways
- A sentencing judge's misstatement of the nature of a family member's disability can constitute a factual error that undermines the weight given to family hardship, and may justify resentencing.
- Family hardship evidence, even where not the primary mitigating factor, is capable of being taken into account as part of the "general mix" of subjective factors bearing on sentence.
- The Court of Criminal Appeal confirmed that a parity ground is ordinarily addressed last, after other grounds of appeal, because it presupposes an otherwise appropriate sentence. That sequencing was maintained here even where the parity ground and the subjective case ground overlapped.
- The question of whether the "restrictive approach" to family hardship identified in cases such as Kremisis should continue to be followed was expressly left open; the Court declined to resolve it without full argument from both parties.
- Where the modus operandi is virtually identical across multiple offences, differentiation in indicative sentences based on the value of property stolen was treated as an appropriate sentencing methodology.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 93T(1), 112(2), 113(2), 188
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(j), 32
- Crimes Act 1914 (Cth), s 16A(2)(p)
Cases:
- Kremisis v The Queen [2016] NSWCCA 257
- Dipangkear v R [2010] NSWCCA 156
- FP v R [2012] NSWCCA 182
- Nguyen v R [2016] NSWCCA 5
- R v Curtis (No 3) (2016) 114 ACSR 184; [2016] NSWSC 866
- R v Edwards (1996) 90 A Crim R 510
- R v Girard, Andrew John; R v Girard, Tessa Maree [2004] NSWCCA 170
- R v Hinton (2002) 134 A Crim R 286; [2002] NSWCCA 405
- R v MacLeod [2013] NSWCCA 108
- R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522
- R v Wirth (1976) 14 SASR 291
- R v X [2004] NSWCCA 93
- R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222