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Court of Criminal Appeal 17 July 2019

Beagley v R

[2019] NSWCCA 155

Firearms & weapons
FIREARMS OFFENCES COMMITTED IN 2011 SENTENCE NOT MANIFESTLY EXCESSIVE APPEAL DISMISSED

Citation: Beagley v R [2019] NSWCCA 155
Court: NSW Court of Criminal Appeal
Date: 17 July 2019
Judges: White JA; Harrison J; R A Hulme J (judgment by R A Hulme J, others agreeing)

Background

The applicant pleaded guilty to two offences arising from an incident on 28 December 2011. While intoxicated, he discharged a .22 rifle fitted with a silencer in his backyard. A woman walking approximately 100 metres away suffered a penetrating gunshot wound to the neck. She required no surgery but continued to experience ongoing physical and psychological harm, including effects on her speech, eating, and mental health.

The applicant had previously been sentenced in August 2012 in the Local Court for related possession offences arising from the same incident, receiving a suspended sentence. He was not charged with the more serious offences of discharging a firearm with disregard for the safety of others and causing grievous bodily harm until approximately April to May 2014. He was ultimately sentenced for those offences in the District Court at Albury in May 2018.

In May 2018, Jeffreys DCJ imposed an aggregate sentence of 4 years' imprisonment with a non-parole period of 2 years and 3 months. A further firearm offence (using an unauthorised prohibited firearm) was taken into account via a Form 1 document. The applicant sought leave to appeal against the sentence.

  • Whether the sentencing judge failed to give proper weight to the principles concerning delay in sentencing, given the gap between the offending in 2011, the charging in 2014, and sentencing in 2018.
  • Whether the sentencing judge misapplied the totality principle in determining the degree of accumulation of the indicative individual sentences.
  • Whether the aggregate sentence of 4 years was manifestly excessive.

Decision

On the question of delay, the Court found no error. The sentencing judge had directly addressed all factors said to be relevant to the impact of delay within the sentencing remarks. The Court found no merit in the submission that those factors had been improperly weighed or overlooked.

On the totality principle and accumulation, the Court confirmed that judges are not required to approach sentencing arithmetically. The proper task is to arrive at a sentence proportionate to the totality of the offender's criminality. The Court observed that the 2018 offences involved discrete and additional criminality compared to the 2012 possession offences, and the degree of accumulation applied to the indicative sentences appropriately reflected that additional criminality.

On manifest excess, the Court held that an excessive indicative sentence does not automatically render an aggregate sentence erroneously excessive. The later offences carried their own distinct criminality, warranting a more severe sentencing response. The Court also noted that where an offender has rehabilitated during a period of delay, the counterfactual question posed in Mill v The Queen (what sentence would have been imposed had all offences been sentenced together at an earlier point) may offer limited utility: had the applicant been sentenced earlier for all offences, he could not have relied upon the rehabilitation achieved in the intervening years. An aggregate sentence of 4 years with the non-parole period set at just over half the total term was found to be comfortably proportionate to the overall criminality.

Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No error was established simply because a sentencing judge addressed delay and totality submissions without explicitly adopting the applicant's characterisation of their weight; direct engagement with the relevant factors in the sentencing remarks was sufficient.
  • Where later offences involve discrete criminality beyond that captured in earlier, related offences, accumulation of indicative sentences is a legitimate sentencing response reflecting the additional wrongdoing.
  • The Court of Criminal Appeal confirmed that an aggregate sentence is not necessarily manifestly excessive merely because an individual indicative sentence within it may appear excessive in isolation.
  • In dismissing the appeal, the Court clarified that the Mill v The Queen counterfactual (what sentence would have been imposed had all offences been dealt with together) carries reduced utility when an offender has rehabilitated during a period of delay, because earlier sentencing would not have permitted reliance on that rehabilitation.
  • Sentencing courts are not obliged to approach the totality inquiry in an arithmetical fashion; the governing question remains whether the overall sentence is proportionate to the totality of the offender's criminality.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 54, 93G(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Firearms Act 1996 (NSW), s 7(1)

Cases:
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Sabra v R [2015] NSWCCA 38
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- R v XX [2009] NSWCCA 115; 195 A Crim R 38