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

McGuiness v R

[2021] NSWCCA 80

Assault & violenceTheft & property
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE COMPARATIVE CASES CONSIDERED LEAVE TO APPEAL GRANTED

Citation: McGuiness v R [2021] NSWCCA 80
Court: NSW Court of Criminal Appeal
Date: 23 April 2021
Judges: Hoeben CJ at CL, Bellew J, Wright J

Background

The applicant pleaded guilty in the District Court at Campbelltown to one count of robbery in company, contrary to s 97(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years' imprisonment. A further offence of attempted aggravated take and drive a motor vehicle with a person in it was taken into account on a Form 1. The plea was entered three days before trial was due to commence.

The offending arose from an incident in June 2018 in which the applicant and a co-offender, both on parole at the time, subjected the victim to a violent assault inside and around the victim's car after a dispute about where they were being driven. The applicant punched the victim repeatedly, and the co-offender choked him using his neck chain. The victim sustained a broken nose, black eye, and facial swelling.

The applicant was sentenced to 7 years and 7 months' imprisonment with a non-parole period of 5 years and 8 months. He sought leave to appeal against that sentence on three grounds.

  • Whether the sentencing judge erroneously took the applicant's conditional liberty (parole) into account when assessing the objective seriousness of the offence, rather than treating it only as an aggravating circumstance.
  • Whether the sentencing judge failed to properly consider or apply the Bugmy principles, which require sentencing courts to take into account the effect of severe childhood deprivation on an offender's moral culpability, and whether the relevant evidence was adequately addressed.
  • Whether the sentence of 7 years and 7 months was manifestly excessive.

Decision

Ground 1: Conditional liberty and objective seriousness

The Court found that a fair reading of the sentencing judge's remarks did not support the conclusion that the applicant's parole status was factored into the assessment of objective seriousness. Wright J observed that the remarks separated the objective seriousness assessment from the notation about aggravation flowing from parole, and that this latter matter was expressly identified as an additional aggravating feature rather than a component of objective seriousness. The first ground was not made out.

Ground 2: Bugmy principles

The Court accepted that the applicant, a 31-year-old Aboriginal Australian man, had experienced a demonstrably dysfunctional upbringing including family separation, exposure to violence, substance abuse, and childhood involvement with the criminal justice system. The sentencing judge expressly identified these matters, referenced Bugmy v The Queen, and characterised the applicant's upbringing as falling within the relevant description. The Court found the evidence was adequately considered and the principles properly applied. The second ground was not made out.

Ground 3: Manifest excess

The Court surveyed comparable cases involving robbery in company with a Form 1 offence and offenders with relevant criminal history and subjective disadvantage. It concluded that the sentence was within the available range and was not unreasonable or plainly unjust. The Court also noted that the applicant had not submitted the sentence was inconsistent with the guideline judgment in R v Henry, which the sentencing judge had expressly applied. The third ground was not made out.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's treatment of an offender's parole status as an additional aggravating feature, separately identified from the objective seriousness assessment, does not constitute error merely because both matters appear in the same remarks on sentence.
  • Under the principles in Bugmy v The Queen, a history of severe childhood deprivation must be taken into account in assessing moral culpability, but the Court of Criminal Appeal confirmed that express engagement with that evidence and the relevant principles satisfies the obligation, even where the sentencing outcome is substantial.
  • In dismissing the appeal, the Court reinforced that manifest excess requires a sentence to be unreasonable or plainly unjust when measured against applicable principles, the circumstances of the offending, subjective matters, and comparable cases.
  • Where an applicant's plea of guilty is entered late, just before trial, the discount available for the utilitarian value of that plea will reflect the timing and the resources already expended.
  • Comparative sentencing analysis remains an important tool when assessing manifest excess, though no single case is determinative and the range of available sentences provides the relevant benchmark.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 154C(2), 344A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for robbery in company)
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Dungay v R [2020] NSWCCA 209
- Moodie v R [2020] NSWCCA 160
- Field v R [2020] NSWCCA 105
- Dixon v R [2019] NSWCCA 85
- Nean v R [2019] NSWCCA 164
- Perkins v R [2018] NSWCCA 62
- Elhassan v R [2018] NSWCCA 118
- Buxton v R [2017] NSWCCA 169
- Ingrey v R [2016] NSWCCA 31
- Miller v R [2015] NSWCCA 86
- Currie v R [2013] NSWCCA 267
- Hamed v R [2011] NSWCCA 219
- England v R; Phanith v R [2009] NSWCCA 274