Citation: McLeod v R [2018] NSWCCA 173
Court: NSW Court of Criminal Appeal
Date: 10 August 2018
Judges: Payne JA, R A Hulme J, Button J (Button J delivering the principal judgment)
Background
The appellant had pleaded guilty in the Local Court to two offences arising from events on 24 January 2016. The first was a police pursuit offence under s 51B(1) of the Crimes Act 1900 (NSW), involving dangerous high-speed driving through intersections and across double white lines in a residential area while disqualified and under the influence of methylamphetamine. The second was aggravated breaking out of a dwelling house under s 109(2) of the Crimes Act, in circumstances where the appellant had entered the home of an adult woman while her teenage daughter was asleep inside, damaged property, locked the victim outside her own home, and climbed into the ceiling and onto the roof before being arrested.
In the District Court at Sydney, Judge Syme sentenced the appellant on 6 January 2017 to an aggregate head sentence of five years' imprisonment, with a non-parole period of two years and eight months. The sentencing judge also dealt with related certificate offences, which were served concurrently.
The appellant sought leave to appeal to the Court of Criminal Appeal, pressing four grounds: that the sentencing judge wrongly assessed the objective seriousness of the offending; that the judge mistakenly identified the particularised serious indictable offence as intimidation rather than malicious damage; that the judge failed to consider the appellant's deprived background in assessing moral culpability; and that the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred in finding the aggravated breaking out offence was above the mid-range of objective seriousness
- Whether the judge's mistaken reference to "intimidation" instead of "malicious damage" as the particularised serious indictable offence amounted to a material error affecting the sentence
- Whether the judge failed to give proper weight to the appellant's severely deprived background when assessing moral culpability, the need for general deterrence, and denunciation
- Whether the aggregate sentence of five years with a non-parole period of two years and eight months was manifestly excessive
Decision
Ground 1 and Ground 1A (Objective Seriousness and Wrong Offence): The Court accepted that the sentencing judge made an error by referring to "intimidation" rather than "malicious damage" as the particularised serious indictable offence. However, this error was not material to the outcome. The remarks on sentence made clear that the seriousness finding rested on the circumstances of the offending as a whole, including the assault on the victim during entry and the presence of her daughter inside the home. Those circumstances supported the above-mid-range finding regardless of which offence label was used.
Ground 2 (Deprived Background): The Court rejected the submission that the sentencing judge failed to consider the appellant's background. The remarks on sentence expressly addressed his disrupted upbringing, his father's drug use and schizophrenia diagnosis, his leaving home at 13 and becoming a "street kid", and his longstanding drug dependency. The Court noted the principles in Bugmy v The Queen (2013) 249 CLR 571, which require a sentencing court to give proper weight to the effects of social deprivation on moral culpability. On the facts, no failure to apply those principles was established.
Ground 3 (Manifest Excess): The Court found the five-year aggregate sentence, though substantial, was not manifestly excessive. The police pursuit offence was described as "particularly selfish" and potentially catastrophic. The aggravated breaking out offence was a serious invasion of the security of a private home, terrifying to the occupants. The appellant had an extensive prior criminal record and had been sentenced to imprisonment on multiple previous occasions. While the Court acknowledged his deprived background, his drug dependency, his acceptance of responsibility, and his genuine desire for rehabilitation, those factors did not render the sentence disproportionate when weighed against the objective gravity of the conduct.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A sentencing judge's erroneous reference to the wrong particularised offence within a compound charge will not vitiate the sentence where the judge's actual reasoning, read as a whole, rests on the established circumstances of the conduct rather than the mislabelled offence.
- Under Bugmy v The Queen, sentencing courts must consider the impact of social deprivation on an offender's moral culpability; however, that obligation is satisfied where the remarks on sentence expressly engage with the offender's background, even if not in exhaustive detail.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that an extensive prior record and the absence of youth as a mitigating factor are properly weighed against subjective features such as deprived background and drug dependency when assessing proportionality.
- No error was established merely because a sentencing judge's description of an offence's seriousness appeared in the same passage as an objective-subjective elision, provided that elision was not itself the basis of any pressed ground.
- A non-parole period representing a significant departure from the standard statutory ratio can be justified where the sentencing judge properly accounts for prospects of rehabilitation alongside the gravity of the overall criminality.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 51B(1), 109(2)
- Criminal Procedure Act 1986 (NSW), s 166
Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Lehn v R [2016] NSWCCA 255