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Court of Criminal Appeal 17 September 2018

Firth v Regina

[2018] NSWCCA 144

Assault & violenceTheft & property
CRIME SENTENCE APPEAL AGAINST SENTENCE FURTHER OFFENCES TAKEN INTO ACCOUNT APPLICANT FROM A DEPRIVED BACKGROUND MANIFEST EXCESS

Citation: Firth v Regina [2018] NSWCCA 144
Court: NSW Court of Criminal Appeal
Date: 17 September 2018
Judges: Simpson AJA, Bellew J, Wilson J (judgment by Wilson J, with whom Simpson AJA and Bellew J agreed)

Background

The applicant pleaded guilty on the first day of trial to three offences committed over 23 to 24 November 2015: aggravated break, enter and steal from a dwelling house (during which he threatened the occupant with a large serrated knife), larceny from a motor vehicle, and break and enter a garage. Additional offences were taken into account on Form 1 documents. At the time of sentencing, the applicant was 36 years old and had a significantly deprived childhood, a history of violence, and mental illness.

The applicant was sentenced in the District Court at Newcastle on 14 July 2017. The sentencing judge imposed an aggregate sentence of eight years imprisonment with a non-parole period of five years. The District Court also dealt with an appeal from the Local Court regarding three further summary offences, incorporating those offences into the aggregate sentence.

The applicant sought leave to appeal to the Court of Criminal Appeal, contending that the sentence was manifestly excessive and that the sentencing judge had failed to give adequate weight to his mental illness and childhood deprivation.

  • Whether the sentencing judge gave adequate weight to the applicant's mental illness and significantly deprived childhood when assessing moral culpability and the role of general deterrence
  • Whether the sentencing judge provided adequate reasons for the sentence imposed
  • Whether it was lawful for the District Court to incorporate sentences for Local Court offences (the subject of a severity appeal) into an aggregate sentence alongside indictable offences, where doing so exceeded the Local Court's jurisdictional sentencing limit

Decision

The Court of Criminal Appeal found that the sentencing judge's reasons were inadequate. Although the judge acknowledged the applicant's mental illness and deprived background, her Honour did not sufficiently engage with how those factors reduced moral culpability or limited the relevance of general deterrence. The Court applied the High Court's guidance in Bugmy v The Queen (2013) 249 CLR 571, which confirmed that profound childhood deprivation can retain its mitigating force regardless of an offender's criminal history.

On the question of general deterrence, the Court held that the applicant's mental illness and background meant he could not be regarded as a suitable vehicle for that sentencing principle. This conclusion required a material moderation of the sentence. The Court also found special circumstances based on the applicant's need for an extended supervision period to support drug rehabilitation he had commenced in custody.

A separate, jurisdictional issue arose that neither party had raised. The District Court had included the Local Court sentences within the aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Court found this was problematic because the aggregate sentence exceeded the sentencing limits applicable to the Local Court offences. The proper course was to remit those matters to the District Court to be dealt with according to law.

The Court resentenced the applicant to an aggregate term of 5 years and 4 months imprisonment (reduced from 8 years), with a non-parole period of 3 years, applying a 10% discount for the limited utilitarian value of the guilty pleas.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 14 July 2017 (counts 1, 3 and 11) quashed
  • Aggregate sentence of 5 years and 4 months imprisonment imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), dating from 17 October 2016 and expiring 16 February 2022, with a non-parole period of 3 years expiring 16 October 2019
  • Indicative sentences: Count 1 (aggravated break enter steal): 3 years 6 months; Count 3 (larceny, with Form 1): 12 months; Count 11 (break enter, with Form 1): 2 years
  • Local Court sentences (subject of the severity appeal) remitted to the District Court of NSW to be dealt with according to law

Key Takeaways

  • Following Bugmy v The Queen, the mitigating significance of severe childhood deprivation does not diminish with the passage of time or the accumulation of prior offences; the Court of Criminal Appeal confirmed it must be given genuine weight in every sentencing exercise where it is established.
  • Where an offender's mental illness and background substantially explain their conduct, the sentencing court is required to moderate the weight given to general deterrence as a sentencing purpose, and reasons must reflect that moderation.
  • Inadequate reasons are themselves a ground of appeal: a sentencing judge's failure to explain how significant mitigating factors affected the outcome can render a sentence unreviewable and vitiate it on appeal.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), an aggregate sentence incorporating Local Court offences (appealed to the District Court for severity) must not exceed the jurisdictional limits applicable to those offences; where it does, the matter should be remitted for proper resentencing.
  • A finding of special circumstances can be justified by an offender's demonstrated need for extended post-release supervision to support rehabilitation, including participation in drug treatment programmes commenced during custody.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1)(a), 112(1)(a), 112(2), 115, 117, 527C(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 53A
- Crimes (Appeal and Review) Act 2001 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1; [2010] NSWCCA 194
- Veen (No 2) [1998] HCA 14; (1998) 164 CLR 465
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 183
- AMZ v R [2013] NSWCCA 6
- Douglass v The Queen [2012] HCA 34
- Pettitt v Dunkley [1971] 1 NSWLR 376
- R v Keyte (2000) 78 SASR 68