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Court of Criminal Appeal 17 August 2018

Bickley v R

[2018] NSWCCA 153

Assault & violenceTheft & property
CRIME SENTENCE APPEAL PAROLE PERIOD ON BAIL AT TIME OF OFFENCE SENTENCE REDUCED FOR EARLY GUILTY PLEA WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Bickley v R [2018] NSWCCA 153
Court: NSW Court of Criminal Appeal
Date: 17 August 2018
Judges: Hoeben CJ at CL, Fullerton J, R A Hulme J

Background

The appellant pleaded guilty in the District Court at Lismore to aggravated break and enter and committing a serious indictable offence (assault occasioning actual bodily harm) under s 112(2) of the Crimes Act 1900 (NSW), an offence carrying a maximum of 20 years and a standard non-parole period of 5 years. He also asked the court to take into account a further assault on a Form 1. The offending arose when he kicked in the front door of his uncle's home and assaulted the uncle, before punching a bystander who tried to intervene.

Judge Wells SC in the District Court sentenced the appellant to 3 years imprisonment with a non-parole period of 1 year 9 months, commencing 14 April 2017. The sentence was reduced by 25 per cent to reflect an early guilty plea. The appellant was on bail for an unrelated assault matter at the time of the offending.

The appellant, who was unrepresented on appeal, sought leave to appeal against the sentence on several grounds, including that the sentencing judge failed to adjourn the matter under s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to allow him to attend rehabilitation before sentence, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to adjourn the proceedings pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to allow the appellant to attend a rehabilitation program before sentencing.
  • Whether the sentence of 3 years imprisonment with a 1 year 9 month non-parole period was manifestly excessive in all the circumstances.
  • Whether the judge failed to give proper weight to rehabilitation prospects, family circumstances, and the character references available at the time of sentencing.

Decision

The Court of Criminal Appeal found no error in the sentencing judge's decision not to adjourn under s 11. That provision permits an adjournment to allow an offender to demonstrate a capacity for rehabilitation, but it does not require a court to grant one. Given the appellant's extensive history of breaching court orders and conditional liberty, it was clearly open to the judge to decline the adjournment.

On the question of manifest excess, the Court reviewed the sentencing statistics for s 112(2) offences and found that a 3-year term was entirely unremarkable. Around 75 per cent of offenders who pleaded guilty and received a full-time custodial sentence received a term in the range of 2 to 4 years. The sentence was therefore consistent with the broader sentencing pattern for comparable offending.

The Court noted that the sentencing judge had carefully engaged with the appellant's personal circumstances, including his tragic and dysfunctional background, early-onset drug addiction, genuine remorse, and some capacity for rehabilitation. The judge treated these matters as significant mitigating factors, but balanced them against the appellant's extensive criminal history spanning more than 20 years, multiple prior prison sentences, and the aggravating circumstance of offending while on bail. The offence was assessed as being at the lower end of the middle range of objective seriousness.

The Court confirmed that "manifestly excessive" requires a sentence to be characterised as "unreasonable or plainly unjust." That threshold was not met. Leave to appeal was granted because the proposed grounds were clearly arguable and warranted full consideration, but the appeal itself was dismissed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court has a discretion to adjourn to allow an offender to demonstrate rehabilitation prospects, but is not obliged to do so. An extensive history of breaching court orders and conditional liberty makes a refusal to adjourn clearly open.
  • A sentence is only "manifestly excessive" where it can be characterised as unreasonable or plainly unjust. Consistency with the sentencing statistics for the relevant offence weighs significantly against that finding.
  • Sentencing statistics were treated as a meaningful reference point: where the sentence imposed sits within the range received by the large majority of comparable offenders, that consistency supports the conclusion that the sentence was not excessive.
  • Tragic personal history, early-onset substance abuse, genuine remorse, and community support are capable of constituting significant mitigating factors, but they do not automatically displace the weight given to a lengthy criminal record and offending on bail.
  • In dismissing the appeal, the Court confirmed that the grant of leave and the ultimate disposition of the appeal are separate questions: leave may be granted because grounds are arguable, while the appeal itself may nonetheless fail on the merits.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 61 (assault), 112(2) (aggravated break and enter and commit serious indictable offence)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 11 (adjournment for rehabilitation)

Cases: No cases were cited in the portions of the judgment available.