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Court of Criminal Appeal 3 August 2018

Weribone v R

[2018] NSWCCA 172

Assault & violenceTheft & property
CRIMINAL LAW ASSERTED ERROR IN CONCLUSION OF FACT QUESTION OF MANIFEST EXCESS ROLE OF SPECIFIC AND GENERAL DETERRENCE

Citation: Weribone v R [2018] NSWCCA 172
Court: Court of Criminal Appeal, New South Wales
Date: 3 August 2018
Judges: White JA; Bellew J; Wilson J

Background

The applicant was convicted of armed robbery and sentenced in the District Court. She sought leave to appeal against her sentence, arguing among other things that the sentencing judge had erred in incorporating both specific and general deterrence into the sentence.

The applicant had a prior criminal history and had re-offended while on parole. Her background included significant childhood deprivation following the death of her grandmother, after which she was exposed to alcohol abuse, domestic violence, and material hardship. The sentencing judge acknowledged these circumstances at length and expressly tempered the deterrence component of the sentence in light of them.

The broader argument raised by counsel for the applicant engaged a question of principle: whether a sentencing court can apply deterrence as a sentencing purpose in the absence of empirical evidence that increasing sentence length actually deters offending.

  • Whether the sentencing judge erred in treating specific and general deterrence as relevant considerations, given that the word "may" in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) confers a discretion to exclude particular purposes in a given case
  • Whether academic and empirical studies showing no measurable deterrent effect from increased sentence length required the court to disregard deterrence absent evidence of its likely efficacy in the particular case
  • Whether the sentence imposed was manifestly excessive, having regard to the applicant's subjective circumstances and the deterrence component

Decision

On the deterrence argument, the Court rejected the submission that a sentencing judge must have empirical evidence of deterrent effect before taking specific or general deterrence into account. White JA confirmed that the word "may" in s 3A identifies the available purposes of sentencing but does not require a judge to affirmatively prove a purpose will be achieved before applying it. Spigelman CJ's earlier observation in R v Wong that the deterrent effect of penalties is a structural assumption of the criminal justice system was noted approvingly, with the Court holding that legislative change of the kind necessary to displace that assumption had not occurred through s 3A.

The Court also rejected the submission that s 3A itself represented the legislative change required to displace the traditional approach. The sentencing judge had not applied deterrence as an automatic or obligatory factor. Rather, he pointed to specific facts, namely the applicant's prior history and re-offending on parole, as justifying its inclusion. That approach was entirely consistent with s 3A(b).

Wilson J noted that the sentencing judge had specifically moderated the weight given to deterrence in recognition of the applicant's deprived background, consistent with the principles in Bugmy v R. It remained open to the sentencing judge to treat deterrence as a relevant consideration to some extent, even in that context.

On manifest excess, the Court was unable to conclude the sentence was unreasonable or plainly unjust. Wilson J observed that, to the contrary, the sentence extended a marked degree of leniency to the applicant, reflected in a finding of special circumstances and the sentence running concurrently with an existing term of imprisonment, wholly subsuming it.

Orders Made

• Application for leave to appeal dismissed

Key Takeaways

  • Under s 3A of the Crimes (Sentencing Procedure) Act 1999, the word "may" identifies the purposes for which a sentence may be imposed; it does not require a sentencing judge to produce empirical evidence that a purpose such as deterrence will be effective before applying it.
  • The Court of Criminal Appeal confirmed that the deterrent effect of penalties remains a structural assumption of the NSW criminal justice system, consistent with R v Wong, and that s 3A has not displaced that assumption.
  • Academic studies showing no measurable effect from marginal increases in sentence length do not, without more, preclude a sentencing judge from treating deterrence as a relevant factor in a particular case.
  • Where an offender's background reflects significant deprivation and disadvantage, the principles in Bugmy v R require that deterrence be moderated accordingly, but they do not necessarily remove deterrence from consideration altogether.
  • No error of fact or principle was established in the sentencing judge's approach; the application for leave to appeal was dismissed as lacking merit.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- Bugmy v R [2013] HCA 37; (2013) 249 CLR 571
- Markarian v The Queen [2005] HCA; (2005) 228 CLR 47
- R v Dube (1987) 46 SASR 118
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Wong (1999) 48 NSWLR 340; [1999] NSWCCA 420