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7
Court of Criminal Appeal 24 July 2020

Higgins v R

[2020] NSWCCA 169

Firearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCING APPEAL AGAINST SENTENCE MANIFEST EXCESS POSSESS PROHIBITED WEAPON ESCAPE POLICE CUSTODY

Citation: Higgins v R [2020] NSWCCA 169
Court: Court of Criminal Appeal, New South Wales
Date: 24 July 2020
Judges: Johnson J, Wright J, Wilson J (Wilson J delivering the principal judgment)

Background

The appellant pleaded guilty in the Local Court to a series of offences committed on 8 and 9 January 2019 in Narrandera and was committed to the District Court for sentence. The offences arose from two connected episodes: a street confrontation in which the appellant armed himself with a knife and threatened to kill a neighbour and burn his house down (affray), and the subsequent discovery that his abandoned bag contained a non-functioning Taser (possession of a prohibited weapon).

The following day the appellant attended Narrandera Police Station on an unrelated matter and was arrested. While in custody, his girlfriend unlocked the door to his section of a visitor's room, and the appellant fled. He swam the Murrumbidgee River, hid in bushland, and spent nearly two hours in the river evading police officers and civilian volunteers in dinghies, throwing wood and hurling abuse before surrendering in exchange for a promise that he could hug his girlfriend (escape from police custody; resist police; two counts of intimidation taken into account on a Form 1 document).

Judge English of the District Court imposed an aggregate sentence of three years' imprisonment with a non-parole period of one year and nine months, commencing 9 March 2019. The appellant sought leave to appeal on two grounds: that the sentencing judge applied an inadequate discount for his guilty plea, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge applied an insufficient discount for the appellant's guilty pleas entered in the Local Court.
  • Whether the aggregate sentence of three years, with a non-parole period of one year and nine months, was manifestly excessive.

Decision

On the first ground (discount for guilty plea), the Court refused leave to appeal. Wilson J found no error in the discount applied by the sentencing judge and declined to grant leave on that ground.

On the second ground (manifest excess), the Court granted leave to appeal but dismissed the appeal. Wilson J applied the well-established principles governing appellate intervention in sentencing matters. Those principles require that intervention is warranted only where the sentence is so far outside the available range that some misapplication of principle must be inferred, or where the sentence is unreasonable or plainly unjust. It is not enough that the appellate court might have exercised the discretion differently.

The Court noted that the appellant had an extremely lengthy criminal history beginning at age ten, spanning serious offences across both the Children's Court and the adult jurisdiction. Wilson J considered the sentencing judge's reasons and the evidence as a whole, including the seriousness of the offending and the appellant's background, and concluded that no misapplication of principle or other error had been demonstrated. The Court also observed that statistics from the Judicial Commission and comparative cases are of limited utility when the sentence under review is an aggregate sentence.

Orders Made

  • Leave to appeal on ground 1 (discount for guilty plea) is refused.
  • Leave to appeal on ground 2 (manifest excess) is granted.
  • The appeal is dismissed.

Key Takeaways

  • Appellate intervention in sentencing is not warranted merely because the result differs from sentences in comparable cases. The Court of Criminal Appeal reaffirmed that error must be discernible from a misapplication of principle or a sentence so far outside the available range as to be unreasonable or plainly unjust.
  • In dismissing the manifest excess ground, the Court confirmed that a sentencing judge's treatment of an aggregate sentence will not ordinarily be displaced by reference to statistics or individual comparator cases, which carry reduced weight in that context.
  • A very extensive criminal history commencing in childhood, including persistent breaching of community-based orders and escalating offending, is a significant factor that a sentencing court is entitled to weigh against an offender even where that history reflects disadvantage.
  • Leave to appeal can be granted on a ground while the appeal on that ground is ultimately dismissed. The two steps, granting leave and determining the appeal, remain distinct.
  • Under the principles summarised in Obeid v R (2017) 96 NSWLR 155, the burden rests on an appellant to establish that the sentence was unreasonable or plainly unjust, not merely that it was more severe than the court below might otherwise have imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 93C(1), 546C
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Dagdanasar v R [2010] NSWCCA 310
- Obeid v R (2017) 96 NSWLR 155
- R v Borkowski [2009] NSWCCA 102
- R v Crombie [1999] NSWCCA 297
- R v Depoma [2003] NSWCCA 382
- R v El Masri [2005] NSWCCA 167
- R v Fernando (1992) 76 A Crim R 58
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- Salafia v R [2015] NSWCCA 141
- Tuite v R [2018] NSWCCA 175
- Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Zreika v R (2012) 223 A Crim R 460