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Court of Criminal Appeal 3 August 2018

BG v R

[2018] NSWCCA 161

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL WHETHER SENTENCE MANIFESTLY EXCESSIVE NO ERROR ESTABLISHED CRIMINAL LAW SENTENCE

Citation: BG v R [2018] NSWCCA 161
Court: NSW Court of Criminal Appeal
Date: 3 August 2018
Judges: Simpson AJA, Bellew J, Wilson J

Background

The applicant pleaded guilty in the District Court at Lismore to nine serious offences arising from two home invasions in October and November 2013. The offending included intentionally destroying property with intent to endanger life, aggravated break enter and steal in company, assault occasioning actual bodily harm, reckless wounding, and recklessly causing grievous bodily harm. Seven additional matters were taken into account on a Form 1.

The primary victim was a 73-year-old man living alone who was assaulted, restrained with electrical cord, robbed, and left in his home after it was deliberately set alight. A second set of offences occurred approximately six weeks later and involved further violent attacks on multiple victims. The applicant was sentenced alongside co-offenders.

On 4 April 2016, the sentencing judge imposed an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years and 4 months. The applicant sought leave to appeal against that sentence on nine grounds.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offences
  • Whether the judge erred in calculating the discount for the utilitarian value of the guilty plea
  • Whether the applicant was entitled to a discount for assistance to authorities
  • Whether the judge failed to give proper weight to the applicant's subjective case
  • Whether the sentence was manifestly excessive
  • Whether the judge erred in failing to find special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error established on any ground. Bellew J (with whom Simpson AJA and Wilson J agreed) addressed each ground in turn.

On objective seriousness, the court found the offending was plainly serious. The first incident involved prolonged, planned violence against a vulnerable elderly victim, restraint, theft, and arson that endangered the victim's life. The second incident involved further violence against multiple victims. No error in the sentencing judge's assessment was identified.

On the guilty plea discount, the court found the applicant received an appropriate discount reflecting the utilitarian value of his plea. The court also addressed the submission that insufficient weight had been given to the applicant's subjective case, noting the narrow circumstances in which such a failure can constitute appealable error and confirming that a mere difference of opinion about the weight to be given to mitigating factors does not demonstrate a miscarriage of the sentencing discretion.

On special circumstances, the sentencing judge had not expressly made a finding but had adjusted the ratio between the head sentence and non-parole period from 75% to 70%. The Court of Criminal Appeal inferred that this adjustment was consistent with an implied finding of special circumstances, based on the applicant's positive rehabilitation prospects, and held that no error was established.

Orders Made

  • Leave to appeal granted
  • The appeal dismissed

Key Takeaways

  • No error was established across nine grounds of appeal, confirming that the aggregate sentence of 9 years with a non-parole period of 6 years and 4 months was within the proper exercise of the sentencing discretion.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 is discretionary in nature, and an appellate court will be slow to interfere with it. An adjustment to the standard ratio between head sentence and non-parole period can be treated as implicitly reflecting such a finding, even where no express finding was stated.
  • Where an applicant submits that a sentencing judge gave insufficient weight to subjective matters, establishing appellate error requires demonstrating a miscarriage of the sentencing discretion. A mere difference of opinion about the weight attributable to subjective factors is insufficient.
  • Significant concurrency in an aggregate sentence, where multiple serious counts are before the court, can itself be regarded as a favourable outcome for an offender when assessing a manifest excess argument.
  • The Court of Criminal Appeal affirmed the principles from House v R (1936) and Hili v R; Jones v R (2010) governing appellate restraint in sentencing appeals, reinforcing that intervention requires identification of specific error, not merely a view that a different sentence was available.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW), ss 35(1), 35(2), 35(4), 59(2), 111(2), 111(3), 112(2), 198

Cases:
- Caristo v R [2011] NSWCCA 7
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
- House v R (1936) 55 CLR 449; [1936] HCA 40
- King v R [2015] NSWCCA 99
- Mulato v R [2006] NSWCCA 282
- R v Baker [2000] NSWCCA 85
- R v Cramp [2004] NSWCCA 264
- R v El-Hayek [2004] NSWCCA 25; 144 A Crim R 90
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460