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Court of Criminal Appeal 30 November 2020

Halloway v R

[2020] NSWCCA 292

Assault & violenceTheft & propertyTraffic & driving
APPEAL SENTENCE APPEAL AGGRAVATED BREAK AND ENTER LARCENY TAKE AND DRIVE CONVEYANCE ASSAULT OCCASIONING ACTUAL BODILY HARM

Citation: Halloway v R [2020] NSWCCA 292
Court: NSW Court of Criminal Appeal
Date: 30 November 2020
Judges: Hoeben CJ at CL, Harrison J, Ierace J

Background

The appellant was a 24-year-old man convicted, following trial, of aggravated break and enter with larceny, taking and driving a conveyance, and two counts of assault occasioning actual bodily harm. He had also pleaded guilty in the Local Court to a separate aggravated break and enter, with a further offence of threatening to use an offensive weapon taken into account on a Form 1 document.

The trial offences arose from a home invasion in the early hours of 7 March 2018. The appellant waited outside and took the occupant's car while co-offenders searched the house and struck two family members, including rendering a young woman briefly unconscious. The plea offence arose from a separate break-in in January 2019, during which the appellant raised a crowbar above his head when confronted by an off-duty police officer before fleeing.

The District Court imposed an aggregate sentence of 8 years imprisonment with a non-parole period of 5 years and 4 months. The appellant sought leave to appeal on the grounds that the sentencing judge erred in treating the offending as aggravated by involving a multiple series of criminal acts, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in treating the offending as aggravated by comprising a multiple series of criminal acts
  • Whether the aggregate sentence of 8 years was manifestly excessive
  • What weight should be given, in a re-sentencing exercise, to a youthful offender's drug addiction, mental illness, disadvantaged background, and prospects for rehabilitation

Decision

The Crown conceded error on the first ground, accepting that the sentencing judge had improperly characterised the offending as aggravated by involving a series of criminal acts. Despite that concession, the Crown maintained that the original sentence was not manifestly excessive and that no lesser sentence was warranted. The Court of Criminal Appeal did not accept that position.

Harrison J, with whom Hoeben CJ at CL and Ierace J agreed, broadly endorsed the sentencing judge's assessment of the objective seriousness of the offences. The point of departure was the weight to be given to the appellant's subjective circumstances, particularly the combination of drug addiction and mental illness. Harrison J held that this combination should have significantly reduced the need for both general and special deterrence, and that the original sentence did not adequately reflect those factors.

The Court noted relevant authority confirming that emotional maturity and impulse control may not be fully developed until the early to mid-twenties, and that for youthful offenders, rehabilitation should generally be accorded greater weight than retribution and general deterrence. The Court also acknowledged that the appellant's mental health difficulties would make any period of custody more burdensome, and that there was a realistic risk of institutionalisation given the time he had already spent in custody across juvenile and adult settings.

A forensic psychiatrist's evidence supported the appellant's release, upon completion of his sentence, into an inpatient drug rehabilitation program to assist community reintegration. The Court reflected this concern in its orders, including a referral to the Drug Court for assessment as the subject of a compulsory drug treatment order.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentence imposed by Judge O'Rourke SC on 16 December 2019 quashed and replaced with an aggregate sentence of 6 years commencing 16 October 2018, with a non-parole period of 4 years expiring 15 October 2022
  • Appellant referred to the Drug Court for assessment as the subject of a compulsory drug treatment order

Key Takeaways

  • The Court of Criminal Appeal confirmed that where a youthful offender labours under the combination of mental illness and drug addiction, those subjective factors warrant significant weight and can reduce the emphasis placed on general and special deterrence at sentencing.
  • A sentencing court's error in treating offending as aggravated by comprising a multiple series of criminal acts does not automatically render a sentence manifestly excessive, but it may ground a re-sentencing exercise in which other errors in the subjective assessment can also be corrected.
  • Upholding the appeal, the Court reduced the aggregate sentence from 8 years to 6 years and the non-parole period from 5 years and 4 months to 4 years, with the indicative sentences for each offence reduced accordingly.
  • Where the serious indictable offence underpinning an aggravated break and enter charge is larceny, rather than a more serious offence such as assault or rape, that is a relevant consideration in assessing objective gravity, as confirmed by the Court's application of Cohen v R [2011] NSWCCA 165.
  • Referral to the Drug Court for assessment as the subject of a compulsory drug treatment order is an available mechanism where custodial sentencing is accompanied by concerns about a young offender's drug dependency and prospects for community reintegration.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1)(a), 59(1), 112(2), 117, 154A(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- BP v R [2010] NSWCCA 159
- Cohen v R [2011] NSWCCA 165
- Dickinson v R [2016] NSWCCA 301
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37