Citation: Gray v R [2018] NSWCCA 39
Court: NSW Court of Criminal Appeal
Date: 6 July 2018
Judges: Macfarlan JA, Johnson J, Campbell J
Background
The appellant pleaded guilty in the Parramatta Local Court to two counts of break and enter with intent to commit a serious indictable offence and one count of break, enter and steal goods valued at approximately $7,750. The offending occurred across two separate incidents in August 2015: an attempted residential break-in at Carlingford and a commercial break-in at a city office complex where laptops, mobile phones and tablets were stolen.
A related summary offence of driving recklessly was also dealt with on sentence. During the Carlingford incident, the appellant had driven his vehicle forward and narrowly missed four police officers who had approached his car on foot. The matters were sentenced in the District Court at Parramatta in December 2016.
The sentencing judge imposed an aggregate term of 5 years imprisonment with a non-parole period of 3 years and 9 months. The appellant sought leave to appeal, arguing the sentence was infected by legal error and was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred in assessing the objective seriousness of the property offences, specifically by treating certain features as statutory aggravating factors under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW) when those features were already inherent in the offences or were otherwise insufficient to elevate seriousness
- Whether the sentencing judge misapplied the principle in Frigiani v R [2007] NSWCCA 81 when sentencing for the reckless driving offence (Sequence 6)
- Whether the aggregate sentence imposed was manifestly excessive
Decision
On Ground 1, the Crown conceded error. The sentencing judge had individually assessed each property offence as being at the low end of objective seriousness but had then treated several features as statutory aggravating factors: a degree of planning, the significant value of goods taken, financial gain, and the fact that offending occurred while the appellant was on conditional liberty (parole). The Court found that these considerations had either been overstated or, in the case of financial gain and degree of planning, were already implicit in the nature of the offences themselves. The fact that the offending occurred on parole was accepted as significantly aggravating, but the cumulative effect of the errors meant the sentencing discretion had miscarried under the House v The King (1936) principle.
On Ground 2, the Court found it unnecessary to resolve whether Frigiani v R had been misapplied to the reckless driving count, as the appeal was to be allowed on Ground 1 in any event. The Court was not satisfied that any error had been established on that issue.
Ground 3, manifest excess, was also unnecessary to determine given that the appeal succeeded on Ground 1. The Court proceeded to re-exercise the sentencing discretion. In doing so, it had regard to the principles of totality and proportionality, imposed a degree of partial accumulation to reflect the separate criminality of each offence, and allowed the new sentence to commence on the same date as the original so as to preserve some concurrence with an existing sentence the appellant was still serving.
On the question of licence disqualification, the Court reduced the mandatory 3-year disqualification to 18 months, to operate from the date of release on parole. The Court accepted that access to a driver's licence was likely to assist the appellant's prospects of employment, rehabilitation and reduced reoffending risk, and noted that his record was not characterised by serious or repeated driving offences.
Orders Made
- Leave to appeal granted; appeal allowed
- Sentence of the District Court quashed
- Aggregate term of 4 years and 4 months imprisonment imposed, commencing 16 December 2016 and expiring 15 April 2021, with a non-parole period of 3 years and 3 months (expiring 15 March 2020) and a balance of term of 1 year and 1 month
- First eligible for release on parole on 16 March 2020
- Licence disqualification reduced from 3 years to 18 months, operative from date of release on parole
Key Takeaways
- A sentencing judge commits appealable error when statutory aggravating factors under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW) are applied to features that are already inherent in the nature of the offences charged, such as financial gain and a degree of planning in break and enter matters.
- Offending on conditional liberty (parole) remains a legitimately significant aggravating consideration, but it must be weighed accurately and not compounded with other improperly applied factors.
- Where a House v The King error is established, the appellate court re-exercises the sentencing discretion afresh, applying totality and proportionality principles to determine an appropriate aggregate sentence.
- Reducing a mandatory licence disqualification period may be appropriate where a shorter period better supports rehabilitation prospects, provided the offending history does not reveal a pattern of serious or repeated road transport breaches.
- In dismissing the secondary ground concerning the application of Frigiani v R, the Court of Criminal Appeal confirmed it need not resolve every argued ground once a sufficient basis for appellate intervention has already been established.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 112, 113
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 53A
- Road Transport Act 2013 (NSW), ss 117, 206A
Cases:
- House v The King (1936) 55 CLR 499 (the established test for appellate intervention in sentencing)
- Frigiani v R [2007] NSWCCA 81
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Porter v R [2008] NSWCCA 145
- Potts v R [2017] NSWCCA 10
- R v Price [2016] NSWCCA 50
- R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145