Citation: Riley v R [2019] NSWCCA 92
Court: Court of Criminal Appeal, NSW
Date: 10 May 2019
Judges: Macfarlan JA, R A Hulme J, Davies J (all agreeing)
Background
The appellant, an Aboriginal woman aged 35 at sentencing, pleaded guilty in the Orange Local Court to aggravated enter dwelling with intent to commit larceny. The circumstance of aggravation was that she entered the dwelling knowing a person was present. Three further offences (taking and driving a conveyance and two counts of dishonestly obtaining property by deception) were taken into account on a Form 1.
The offending arose from an opportunistic early-morning entry into a residential unit in Mudgee, where the appellant took car keys visible on a lounge room table, drove the victim's parked Jeep a short distance, and used the victim's debit and credit cards for small purchases. The victim was asleep in the unit at the time.
Judge King SC in the District Court sentenced the appellant to a non-parole period of two years and nine months, with a balance of term of one year. The appellant sought leave to appeal on two grounds concerning errors in the sentencing judge's reasoning.
Legal Issues
- Whether the sentencing judge misapplied the principles established in Bugmy v The Queen and R v Fernando by treating the mitigating weight of the appellant's deprived Indigenous background as diminished by her failure to take rehabilitation opportunities over time.
- Whether the sentencing judge double counted an aggravating factor by treating the presence of the victim in the dwelling as an aggravating circumstance under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), when that same presence was already an element of the offence charged.
Decision
Ground 1: Deprived background
The Court of Criminal Appeal found that the sentencing judge had erred in his application of the Bugmy principles. The High Court in Bugmy confirmed that the effects of profound deprivation do not diminish with the passage of time simply because a person has failed to seize rehabilitation opportunities. The sentencing judge's reasoning that the appellant's background had reduced mitigating weight because she had been "entirely unsuccessful" in overcoming it over many years was inconsistent with that principle.
The Court accepted that the appellant's deprived background remained operative on her behaviour and wellbeing. Her longstanding personality disorder, depression, anxiety, and entrenched drug use were linked to that background, and these factors continued to bear on her moral culpability. The Court characterised her subjective circumstances as "powerfully in her favour," even while acknowledging that community protection and deterrence remained important considerations.
Ground 2: Double counting
The Court found a further error in the sentencing judge's reasoning. The presence of a person in the dwelling was not merely an aggravating factor under s 21A; it was a constitutive element of the aggravated offence itself. Treating it again as a separate aggravating circumstance under s 21A amounted to double counting. This ground was also upheld.
Resentencing
Finding both grounds established and that a lesser sentence was warranted in law, the Court proceeded to resentence the appellant. It characterised the offending as well below the mid-range: it was opportunistic, the vehicle was left undamaged and recovered, and the financial loss to the victim was modest. A 25% discount was applied for the utility of the early guilty plea. The Court set a notional starting point of four years' imprisonment, arriving at a non-parole period of two years and two months with a balance of term of ten months.
Orders Made
- Leave to appeal granted.
- Appeal allowed.
- Sentence imposed by Judge King SC on 31 May 2018 quashed.
- In lieu, the appellant sentenced to a non-parole period of two years and two months commencing 15 December 2017 and expiring 14 February 2020, with a balance of term of ten months expiring 14 December 2020.
Key Takeaways
- The Court of Criminal Appeal confirmed the Bugmy principle that the mitigating weight of a deprived background does not reduce over time merely because an offender has failed to take advantage of rehabilitation opportunities. The effects of profound childhood deprivation remain relevant to moral culpability at every stage of an offender's life.
- A sentencing judge commits an error of principle by using a constituent element of the charged offence as an additional aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999. Where the presence of a person in a dwelling forms part of the offence as charged, it cannot be counted again as a separate circumstance of aggravation.
- Under the Fernando and Bugmy line of authority, the combination of an Indigenous background, childhood trauma, longstanding substance dependence, and untreated mental health conditions can collectively carry significant mitigating weight, even where rehabilitation prospects are poor.
- In dismissing any suggestion that moral culpability diminishes only when an offender reforms, the Court reinforced that background circumstances explain (though do not excuse) ongoing criminal behaviour and must be properly weighed in assessing culpability.
- Opportunistic offending with limited financial harm, an early guilty plea, and powerful subjective circumstances collectively warranted a materially reduced sentence, even where community protection and deterrence remained prominent sentencing objectives.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Fernando (1992) 76 A Crim R 58
- R v Bugmy [2012] NSWCCA 223
- Ingrey v R [2016] NSWCCA 31
- Johan v R [2015] NSWCCA 58