AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 23 June 2021

Vinaisi v R

[2021] NSWCCA 134

Fraud & dishonestyTheft & property
CRIME APPEALS APPEAL AGAINST SENTENCE

Citation: Vinaisi v R [2021] NSWCCA 134
Court: NSW Court of Criminal Appeal
Date: 23 June 2021
Judges: Payne JA, Price J, Wright J

Background

The applicant pleaded guilty on the first day of trial to aggravated breaking and entering with intent to commit larceny, contrary to s 111(2) of the Crimes Act 1900 (NSW). Two further offences (stealing from a dwelling-house and dishonestly obtaining a financial advantage by using stolen credit cards) were taken into account on a Form 1. The offences occurred in December 2018, approximately six weeks after the applicant had been released on parole.

The sentencing judge in the District Court imposed a sentence of two years and ten months' imprisonment with a non-parole period of one year and nine months, commencing 6 October 2019. A 5% discount was applied for the late guilty plea. The judge found special circumstances, adopting a non-parole period ratio of 61%, on the basis of the risk of institutionalisation and the applicant's need for support and rehabilitation upon release.

The applicant sought leave to appeal to the Court of Criminal Appeal on the sole ground that the sentencing judge had failed to adequately take into account his pattern of recidivism, namely his repeated return to custody after short periods in the community. The appeal was heard and decided on an expedited basis because the non-parole period was due to expire on 5 July 2021.

  • Whether the sentencing judge erred by failing to give sufficient consideration to the applicant's pattern of recidivism, specifically his history of spending only short periods in the community between episodes of custody.
  • Whether the non-parole period should have been reduced, with the balance of the sentence extended, to better accommodate the applicant's need for community supervision given that recidivism pattern.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Payne JA, with whom Price J and Wright J agreed, found that the sentencing judge had not overlooked the applicant's pattern of returning to custody after short periods in the community. That pattern was evident from the sentencing judge's careful consideration of the applicant's criminal record and her specific findings about the risk of institutionalisation, which underpinned the finding of special circumstances.

The Court applied the principle from Elshaimy v R [2018] NSWCCA 169, which confirms that a sentencing judge is not required mechanistically to refer to each and every discrete submission made by a party. It is sufficient that the whole flavour of the remarks on sentence constitutes an implicit acceptance of the particular point being made. The Court found that the sentencing judge's reasons met that standard.

No appealable error was established. The structure and length of the sentence, including the 61% non-parole period ratio, were left undisturbed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge is not required to address every discrete submission made on behalf of an offender, provided the overall character of the remarks on sentence implicitly reflects that the point has been considered. This was confirmed by the Court of Criminal Appeal applying Elshaimy v R.

  • In dismissing the appeal, the Court found that implicit treatment of a submission within sentencing remarks can constitute sufficient engagement, without a formal, point-by-point response in the judgment.

  • A finding of special circumstances grounded in the risk of institutionalisation and the need for post-release support can itself demonstrate that a sentencing judge has taken a pattern of recidivism into account, even without express reference to that pattern in those terms.

  • Under Bugmy v The Queen (2013) 249 CLR 571, a background of deprivation and disadvantage remains a mitigating factor and can reduce an offender's moral culpability, even where prospects of rehabilitation are assessed as poor.

  • The Court confirmed that prior criminal history, breach of conditional liberty at the time of offending, and inadequate remorse are all considerations that may disentitle an offender to leniency and support a more severe penalty.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 111(2), 148, 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A(d)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Elshaimy v R [2018] NSWCCA 169