AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 27 October 2021

Kane v R

[2021] NSWCCA 250

Theft & property
CRIME APPEAL AGAINST SENTENCE BREAK, ENTER AND STEAL OFFENCES MANIFEST EXCESS NO SPECIFIC ERROR ALLEGED SUBJECTIVE CIRCUMSTANCES

Citation: Kane v R [2021] NSWCCA 250
Court: Court of Criminal Appeal
Date: 27 October 2021
Judges: Leeming JA and R A Hulme J (majority); Campbell J (dissenting)

Background

The appellant pleaded guilty in the Local Court to one count of aggravated break and enter with intent to steal and two counts of aggravated break, enter and steal, with a further three offences taken into account on a Form 1. The offending consisted of a series of commercial premises break-ins across two nights in early July 2019, involving a hairdressing salon, a sporting centre, two cafes, and a beauty salon in Sydney's southern suburbs. A stolen car was used in the later offences.

At the time of the offending, the appellant had been released to parole only five days earlier, on 30 June 2019, after serving a sentence for recklessly causing grievous bodily harm in company. He was arrested in the early hours of 6 July 2019 and remained in custody from that date.

The District Court sentenced the appellant to an aggregate term of four years imprisonment, with a non-parole period of two years and eight months, backdated to commence 2 February 2020. The appellant sought leave to appeal on the sole ground that the sentence was manifestly excessive.

Legal Issues

  • Whether the aggregate sentence of four years imprisonment was manifestly excessive
  • Whether the sentencing judge gave insufficient weight to the appellant's disadvantaged background and substance abuse history under the principles in Bugmy and Fernando
  • Whether the sentence should have been backdated further to allow greater concurrency with the earlier parole sentence

Decision

Ground 1: Manifest excess

The majority (Leeming JA and R A Hulme J) found no error, either apparent on the face of the sentencing remarks or inferable from the result. They noted that the sentencing judge had assessed objective seriousness as falling between the low to mid-range, accepted the appellant's remorse, applied a 25 percent discount for the early plea, found special circumstances, and backdated the sentence to allow partial concurrency with the prior sentence (at [15]). The indicative sentences, fully accumulated, would have reached eight years; the aggregate of four years therefore incorporated substantial notional concurrency (at [9], [21]). The majority concluded the sentence was well within the range open to the sentencing judge (at [15]-[16]).

Ground 2: Bugmy principles and subjective circumstances

The majority did not address this ground separately from the broader manifest excess analysis. Campbell J, in dissent, found that the sentencing judge placed excessive emphasis on general deterrence by treating commercial premises break-ins as equivalent in seriousness to residential break-ins, and did not give sufficient weight to the connection between the appellant's childhood deprivation and his substance abuse and offending under the principles in Bugmy (at [65]-[68]). Campbell J regarded these factors as warranting a greater reduction in moral culpability than the sentencing judge allowed (at [68]).

Ground 3: Backdating and totality

The majority accepted that the sentencing judge's approach to backdating conferred some benefit, noting that the effect was to add an additional 3 years and 9 months to run after the conclusion of the prior sentence (at [8]). Campbell J acknowledged that further backdating could theoretically have been adopted but noted the sentencing judge applied the same approach to the co-offender, and did not treat the degree of backdating alone as a basis for finding manifest excess (at [69]). Campbell J's dissent rested on the combined effect of the seriousness assessment and the Bugmy considerations, not the backdating issue in isolation (at [71]).

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an appellate court cannot intervene in a sentencing decision simply on the basis of disagreement with the outcome; error must be identified or must be inferable from the manifest excess of the sentence itself (at [11]-[15]).
  • A sentence imposed after aggravated commercial break-ins committed within days of parole release, incorporating a 25 percent plea discount, a finding of special circumstances, and substantial notional concurrency, was held by the majority to fall well within the available range, notwithstanding significant subjective mitigating features (at [15]-[16]).
  • Campbell J's dissent illustrates that the distinction between commercial and residential premises is relevant to assessing the objective seriousness of break-and-enter offending, and that treating them as equivalent in seriousness may result in undue weight being placed on general deterrence (at [65]-[66]).
  • Under the Bugmy principle, childhood deprivation can operate to reduce moral culpability across a range of offending types, not only offences of violence, and its connection to an offender's substance abuse and criminal conduct should be given weight in the sentencing exercise (at [61]-[62], [68]).
  • Where an aggregate sentence is challenged as manifestly excessive, the appellate inquiry is whether that aggregate is unreasonable or plainly unjust when all relevant matters are considered, rather than whether each indicative sentence was individually excessive (at [52]-[55]).

Legislation and Cases Referenced

Legislation
- Crimes (Administration of Sentences) Act 1999 (NSW) s 158
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 33, 53A, 54B
- Crimes Act 1900 (NSW) ss 112, 113, 154A

Cases
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Commonwealth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Fernando (1992) 76 A Crim R 58
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Kerr v R [2016] NSWCCA 218
- Leach v The Queen [2008] NSWCCA 73; 183 A Crim R 1
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Mitchell, Allan v R; Mitchell, Paul v R; Mitchell, Michael v R [2014] NSWCCA 212
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64