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Court of Criminal Appeal 27 May 2020

Norford v R

[2020] NSWCCA 104

Theft & property
CRIMINAL LAW APPEAL SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE ERROR ESTABLISHED APPLICANT RE

Citation: Norford v R [2020] NSWCCA 104
Court: NSW Court of Criminal Appeal
Date: 27 May 2020
Judges: Simpson AJA, Rothman J, Bellew J (judgment delivered by Bellew J)

Background

The applicant pleaded guilty in the District Court to two offences arising from a night of residential burglary in Potts Point in October 2018. The more serious charge, under s 112(2) of the Crimes Act 1900 (NSW), involved breaking and entering an occupied dwelling and committing larceny, knowing that persons were present inside. The applicant entered through an unlocked front door, stole a mobile phone, and was seen by the occupants before fleeing. A third offence of larceny was taken into account on a Form 1.

The sentencing judge in the District Court imposed a total sentence for the s 112(2) offence of five years' imprisonment, comprising a non-parole period of two years and six months and an additional term of two years and six months. The applicant sought leave to appeal that sentence on the single ground that it was manifestly excessive.

The applicant had an extensive criminal history and a difficult personal background marked by childhood trauma, intergenerational family violence, sexual abuse, long-term homelessness, and severe poly-substance dependency beginning in early adolescence.

  • Whether the sentence imposed for the s 112(2) offence was manifestly excessive
  • Whether there was an internal inconsistency in the sentencing judge's reasoning, specifically whether the favourable findings made about the objective circumstances of the offending were irreconcilable with the conclusion that the offending fell below mid-range rather than at the lower end of the range
  • Whether special circumstances existed to justify a departure from the standard statutory ratio between the non-parole period and additional term

Decision

The Court of Criminal Appeal found that error had been established. The sentencing judge made a series of clearly favourable findings about the objective quality of the offending: the property stolen was of modest value, the planning was "almost non-existent," the offending was opportunistic and unsophisticated, and any criminal intent was formed on the spur of the moment. Those findings were not challenged on appeal.

However, the sentencing judge then concluded that the confrontation with the occupant of the premises prevented a finding that the offending fell at the lower end of the range of objective seriousness, placing it instead below mid-range. The Court held that this conclusion was inconsistent with the favourable findings that preceded it. On the basis of those unchallenged findings, the offending should have been assessed as falling at the lower end of the range. This internal inconsistency constituted sentencing error.

The Court re-sentenced the applicant. Despite his lengthy criminal history, the Court accepted there was cautious optimism about his prospects of rehabilitation, noting in particular that, for the first time in custody, the applicant had devised a concrete plan for his release addressing multiple aspects of his rehabilitation. This demonstrated some genuine insight into his need for change. The Court found that special circumstances existed to justify an adjustment to the statutory ratio between the non-parole and additional terms, in order to provide an extended period on parole to support reintegration into the community. A 25% discount was applied to reflect the utilitarian value of the guilty plea.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • The sentence imposed in the District Court for the offence contrary to s 112(2) of the Crimes Act 1900 (NSW) is quashed
  • In lieu thereof, the applicant is sentenced to a non-parole period of 1 year and 9 months' imprisonment from 30 November 2018, expiring 29 August 2020, with an additional term of 1 year and 9 months' imprisonment commencing 30 August 2020 and expiring 29 May 2022

Key Takeaways

  • An internal inconsistency in a sentencing judge's reasons, where favourable findings about the objective circumstances of offending are not reflected in the ultimate assessment of objective seriousness, can constitute appealable error.
  • The Court of Criminal Appeal confirmed that unchallenged factual findings made by a sentencing judge remain binding on appeal and must be given coherent effect in the overall assessment of the sentence.
  • A lengthy and entrenched criminal history does not automatically foreclose a finding of special circumstances or a cautiously optimistic view of rehabilitation prospects, particularly where the offender demonstrates new and concrete insight into the need for change.
  • Under s 112(2) of the Crimes Act 1900 (NSW), the maximum penalty is 20 years' imprisonment with a standard non-parole period of 5 years; the re-sentence imposed here reflected an assessment of the offending at the lower end of the objective range, combined with a guilty plea discount and a finding of special circumstances.
  • Sentencing courts must ensure that their factual findings and their ultimate conclusions about objective seriousness are logically reconcilable; a series of mitigating objective findings that is then not applied consistently to the range assessment may ground a successful manifest excess appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 111(2), 112(2)

Cases
- Cohen v R [2011] NSWCCA 165
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221