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Court of Criminal Appeal 2 July 2021

Saraya v R

[2021] NSWCCA 139

Assault & violenceTheft & propertyPublic order & justice offences
WHETHER SENTENCE MANIFESTLY EXCESSIVE RANGE OF OBJECTIVE SERIOUSNESS LACK OF FAVOURABLE SUBJECTIVE CASE HELD, NO ERROR

Citation: Saraya v R [2021] NSWCCA 139
Court: NSW Court of Criminal Appeal
Date: 2 July 2021
Judges: Bathurst CJ, Beech-Jones J, N Adams J (unanimous)

Background

The appellant pleaded guilty in the Local Court to aggravated entry into a dwelling house with intent to commit a serious indictable offence (s 111(2), Crimes Act 1900) and assault occasioning actual bodily harm in company (s 59(2), Crimes Act 1900). Two further offences (obtaining financial advantage by deception and common assault) were taken into account on a Form 1.

The offences arose from a late-night entry by the appellant and a co-offender, both armed with large knives, into an occupied home in Leichhardt. They confronted and assaulted a male occupant, held a knife to his face, and stole a handbag. Shortly afterwards, the appellant used a stolen credit card at a fast food outlet. The backpack left at the scene contained cable ties, tape, pliers, and another knife.

After a 25% discount for early guilty pleas, the sentencing judge imposed an aggregate sentence of 7 years imprisonment with a non-parole period of 5 years 3 months. The indicative sentence for the principal offence was 6 years. The appellant sought leave to appeal, contending that the sentencing judge erred in assessing objective seriousness and that the sentence was manifestly excessive.

  • Whether the sentencing judge impermissibly "double-counted" elements of the offence under s 111(2) as aggravating features when assessing objective seriousness (specifically, by referencing the use of knives and the nighttime entry into a dwelling)
  • Whether the aggregate sentence was manifestly excessive

Decision

Ground 1: Double-counting of offence elements

The Court of Criminal Appeal rejected the double-counting argument. The offence of aggravated entry under s 111(2) requires proof of entry into a dwelling with intent to commit a serious indictable offence, but it does not specify the type of weapon involved or the time of entry. The sentencing judge's references to the knives being large kitchen and filleting knives, and to the entry constituting an effective invasion of a domestic dwelling at night, were therefore legitimate observations about the specific circumstances of this offending, not a restatement of the bare elements of the offence. Considering those circumstances did not constitute error.

Ground 2: Manifest excess

The Court found the sentence was not manifestly excessive. The sentencing judge placed the offence slightly above the mid-range of objective seriousness, a finding the Court of Criminal Appeal considered open on the facts. Although the JIRS data indicated this was among the higher sentences for s 111(2) offences, the Court was satisfied that reflected the combination of objective seriousness and a subjective case that offered almost no mitigating weight beyond the guilty plea. The appellant was 35 years old at the time, had a lengthy criminal history, was on bail for a drug offence when the offending occurred (an aggravating factor under the Sentencing Act), had never sought treatment for long-standing drug addiction, and had shown little insight. Both the sentencing judge and a District Court judge on an earlier matter had found him to be an unreliable historian, which significantly limited the favourable findings available in mitigation, including any finding as to prospects of rehabilitation.

The Court was satisfied that the sentence, though stern, reflected the proper application of the instinctive synthesis of all relevant objective and subjective factors, and was not unreasonable or plainly unjust.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Where a statutory offence does not specify the type of weapon used or the time of entry, a sentencing court may properly treat those specific circumstances as matters bearing on objective seriousness without falling into double-counting error.
  • Referencing aggravating features that go beyond the bare elements of an offence, even where those features are closely related to the offence, is a legitimate part of the sentencing exercise and does not constitute error.
  • A subjective case providing almost no mitigation beyond a guilty plea can legitimately result in a sentence at the higher end of the range, even where the objective seriousness is assessed as only slightly above mid-range.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that JIRS comparison data, while a useful reference point, does not determine whether a sentence is unreasonable or plainly unjust; individual differences in subjective circumstances between offenders will invariably exist.
  • Being on bail at the time of the offence remained a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999, and an offender's failure to seek any treatment for long-standing substance addiction was relevant to the assessment of rehabilitation prospects.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 4, 33, 59(2), 61, 111(2), 112, 192E
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 32
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Dyer v R [2011] NSWCCA 185
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- JM v R [2014] NSWCCA 297
- Kennedy v R [2013] NSWCCA 19
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mulato v R [2006] NSWCCA 282
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Pleace v R [2017] NSWCCA 112
- R v Kollas and Mitchell [2002] NSWCCA 491
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Z v R [2015] NSWCCA 274