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Court of Criminal Appeal 22 December 2020

Beal v R

[2020] NSWCCA 357

DrugsTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE APPEAL FROM THE DRUG COURT APPEAL ALLOWED APPELLANT RE SENTENCED

Citation: Beal v R [2020] NSWCCA 357
Court: Court of Criminal Appeal, New South Wales
Date: 22 December 2020
Judge(s): Johnson J, N Adams J, Ierace J (reasons delivered by Ierace J)

Background

The appellant pleaded guilty to 14 offences, predominantly property crimes including multiple break-and-enter offences committed across several suburbs in mid-2018. On 21 January 2019, the Drug Court at Parramatta imposed an initial aggregate sentence of three years' imprisonment across eight of those offences, with several others dealt with by conviction and no further penalty, and one matter remanded conditionally under the Drug Court program.

The sentence was suspended to allow the appellant to participate in the Drug Court rehabilitation program. She failed to comply with the program conditions and committed three further offences, resulting in termination of her participation. She was then brought before the Drug Court for final sentencing.

On 23 August 2019, Judge Mottley imposed a final aggregate sentence of three years and six months' imprisonment with a non-parole period of two years, covering the original 13 offences plus the remanded matter and the three new offences. The appellant appealed to the Court of Criminal Appeal against the severity of that sentence.

  • Whether the Drug Court failed to comply with the statutory process required by section 12 of the Drug Court Act 1998 (NSW) when reconsidering the initial sentence and imposing the final sentence.
  • Whether the sentencing judge failed to properly apply the principles from Bugmy v The Queen (2013) 249 CLR 571 when sentencing an offender with a background of severe social deprivation, specifically in relation to moral culpability and the weight given to the purposes of sentencing.

Decision

On the first ground, the Court of Criminal Appeal accepted that the Drug Court did not undertake the task set by section 12 of the Drug Court Act 1998 in the manner required by statute when moving from the initial sentence to the final sentence. This constituted an error that warranted intervention.

On the second ground, the Court found that the sentencing judge had not properly applied the principles governing offenders with backgrounds of severe social deprivation, as established by the High Court in Bugmy v The Queen. Those principles require a sentencing court to consider how such a background affects an offender's moral culpability and the weight to be given to the various purposes of sentencing, including general and specific deterrence.

Both grounds of appeal were upheld. The Court resentenced the appellant itself, imposing a reduced aggregate sentence of three years' imprisonment with a non-parole period of one year, nine months and three weeks. The commencement date was also adjusted, backdated to 3 March 2019. The Court noted that while the appellant's participation in programs during custody was commendable, her prospects of rehabilitation remained limited given her failure to engage with the Drug Court program.

For a number of the less serious offences (including larceny, enter vehicle without consent, negligent driving, and ticketing matters), the Court imposed no penalty other than conviction, consistent with the approach taken at the initial sentence.

Orders Made

  • Appeal allowed.
  • The sentence imposed by Judge Mottley on 23 August 2019 is quashed.
  • In lieu thereof, the appellant is sentenced to 3 years' imprisonment, commencing on 3 March 2019 and expiring on 2 March 2022, with a non-parole period of 1 year, 9 months and 3 weeks, expiring on 23 December 2020.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Drug Court must strictly follow the statutory process prescribed by section 12 of the Drug Court Act 1998 when reconsidering an initial sentence and imposing a final sentence after program termination; departure from that process constitutes an error on appeal.
  • Under the principles in Bugmy v The Queen, a sentencing court is required to address an offender's background of severe social deprivation by specifically considering how that background affected moral culpability and the weight to be attributed to the purposes of sentencing, including deterrence.
  • Failure to engage with Bugmy principles in sentencing reasons amounts to a material error, even where the offending is serious and the offender has committed further offences during the Drug Court program.
  • In resentencing, the Court reduced the aggregate from three years and six months to three years' imprisonment, reflecting proper application of the social deprivation principles and the adjusted commencement date.
  • Participation in rehabilitative programs during custody was treated as a commendable but limited mitigating factor, given the appellant's prior failure to complete the Drug Court program.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5AF
- Drug Court Act 1998 (NSW), ss 6, 12
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 11
- Crimes Act 1900 (NSW)
- Interpretation Act 1987 (NSW)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130
- Yeung v R [2018] NSWCCA 52