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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, NSW
Date: 27 October 2021
Judge(s): 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, all committed in company. Two further counts of aggravated break, enter and steal and an offence of knowingly being carried in a stolen conveyance were taken into account on a Form 1 (a mechanism under the Crimes (Sentencing Procedure) Act 1999 that allows additional offences to be acknowledged at sentencing without attracting separate penalties).

All six offences occurred over two nights: 4 to 5 July 2019 and 5 to 6 July 2019. Critically, the appellant had been released to parole only five days before the first offence, having served 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 thereafter.

The District Court sentenced the appellant to an aggregate term of four years imprisonment, commencing 2 February 2020 (backdated to provide partial concurrency with the earlier sentence), with a non-parole period of two years and eight months. The maximum penalties for the principal offences were 14 years and 20 years respectively, the latter carrying a standard non-parole period of five years. On appeal to the Court of Criminal Appeal, the appellant argued the sentence was manifestly excessive.

  • Whether the aggregate sentence of four years was manifestly excessive, justifying appellate intervention in the absence of any identified specific error
  • Whether the degree of backdating was sufficient
  • Whether the sentencing judge gave adequate weight to the appellant's subjective circumstances, including his background, limited education, expressions of remorse, and a possible underlying psychotic illness
  • Whether parity with a co-offender was appropriately maintained

Decision

The majority (Leeming JA and R A Hulme J) dismissed the appeal. Applying the well-established principles from House v The King and the High Court's restatement in Betts v The Queen, the majority confirmed that appellate intervention in sentencing requires the identification of error, whether specific or inferred from the manifest excess of the sentence itself. The power to intervene does not arise simply because a result is markedly different from other sentences; it is available only where the difference is such that some misapplication of principle must be inferred.

The majority found no basis to draw that inference. The sentencing judge had made findings favourable to the appellant, including that the objective seriousness fell between the low to mid-range, his unfortunate family background and limited education, and his expressions of remorse. The sentence incorporated a 25% discount for the early guilty plea, a finding of special circumstances (which can allow a sentencing court to vary the standard ratio between non-parole period and total sentence), and backdating providing approximately three months of concurrency.

The majority emphasised that the appellant committed a series of serious offences whilst on parole. The aggregate sentence incorporated substantial notional concurrency across the three indicative sentences, and both the indicative sentences and the aggregate remained well below the applicable maximum penalties and standard non-parole period. The majority concluded the sentence was well within the range open to the sentencing judge.

Campbell J dissented. He would have granted leave, allowed the appeal, and re-sentenced the appellant to a lesser term. His Honour's analysis favoured placing objective seriousness more firmly in the low range, reducing the weight given to general and specific deterrence, and giving greater emphasis to the Bugmy principles (which require sentencing courts to take into account the impact of severe childhood deprivation on an offender's moral culpability). Campbell J also considered the fresh psychiatric evidence, but found it did not establish a positive diagnosis of schizophrenia or any other underlying psychotic illness beyond the existing confirmed diagnosis of substance use disorder. As his views represented a minority opinion, Campbell J did not formulate a specific re-sentence.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that manifest excess alone does not authorise intervention; an appellate court must be able to infer from the excess that some misapplication of principle occurred, even if the precise error cannot be identified.
  • No error was established where the sentencing judge had applied a 25% guilty plea discount, found special circumstances, backdated the sentence to provide partial concurrency, and assessed objective seriousness at the low to mid-range.
  • Offending committed only days after release to parole remained a significant aggravating feature that the sentencing court was entitled to weigh heavily.
  • Under the Bugmy principles, severe childhood deprivation and disadvantage are relevant to the assessment of moral culpability; Campbell J's dissent illustrates that the weight to be given to such factors can be a genuine point of appellate contest even where no specific error appears.
  • Fresh psychiatric evidence on appeal will not displace a sentencing judge's findings unless it permits a positive finding on the disputed issue; a "possible underlying psychotic illness" expressed with professional caution did not meet that threshold.

Legislation and Cases Referenced

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

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