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Court of Criminal Appeal 14 October 2022

Musa v R

[2022] NSWCCA 221

Assault & violenceTheft & property
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE

Citation: Musa v R [2022] NSWCCA 221
Court: Court of Criminal Appeal, New South Wales
Date: 14 October 2022
Judge(s): Kirk JA; Harrison J; Wright J

Background

The appellant pleaded guilty in the Local Court to two counts of aggravated breaking and entering in company and committing a serious indictable offence, specifically armed robbery with wounding, in circumstances of special aggravation (intentionally inflicting grievous bodily harm), contrary to s 112(3) of the Crimes Act 1900 (NSW). Each offence carried a maximum penalty of 25 years' imprisonment and a standard non-parole period of 7 years.

Following committal to the District Court for sentence, the appellant received an aggregate sentence of 15 years' imprisonment with a non-parole period of 10 years. His prior record consisted of one dishonesty offence from 2016 dealt with under a s 10 bond (meaning no conviction was formally recorded), two driving while disqualified matters, and a drink driving offence.

The appellant sought leave to appeal on the single ground that the sentencing judge failed to identify his lack of a significant criminal record as a mitigating factor under s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • Whether the sentencing judge erred by failing to treat the appellant's limited criminal history as a mitigating factor under s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether the sentencing judge's remarks, read as a whole, demonstrated that she had in fact taken the appellant's limited record into account in his favour.

Decision

Harrison J (with Kirk JA and Wright J agreeing) dismissed the appeal, though leave to appeal was granted. The central question was whether the sentencing judge had adequately turned her mind to the appellant's criminal record as a mitigating factor, even though she did not expressly cite s 21A(3)(e).

Harrison J confirmed that a sentencing judge is not required to cite the section by name or use its precise wording. What matters is whether the factor was in substance taken into account. This principle had been confirmed in Taylor v R [2018] NSWCCA 255 and Saunders v R [2022] NSWCCA 174.

On the facts, the Court found that the sentencing judge's reference to the appellant's "limited criminal history" was properly understood as a reference to the absence of any significant record of previous convictions. Her Honour's comparison between the appellant's limited history and a "fully clear" record indicated she afforded him some leniency, not that she denied him any leniency at all. In particular, her Honour specifically noted that his limited history would work in his favour regarding prospects of rehabilitation.

The Court read her Honour's remarks as if the word "such" appeared before the word "leniency" in the relevant passage, rather than the word "any." Read in that way, and in the context of the sentencing remarks as a whole, no error was established.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A sentencing judge is not required to expressly cite s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW) or use its exact language for the mitigating factor of no significant prior convictions to be properly taken into account.
  • The Court of Criminal Appeal confirmed that a conviction dealt with by a s 10 bond does not form part of an offender's "record of previous convictions" for the purposes of s 21A(2)(d), applying the principle in R v Price [2005] NSWCCA 285.
  • Under s 21A, the relationship between s 21A(2)(d) (prior convictions as an aggravating factor) and s 21A(3)(e) (absence of significant prior convictions as a mitigating factor) requires a factual determination about whether any existing record is sufficiently significant to attract the aggravating provision, following Meis v R [2022] NSWCCA 118.
  • Sentencing remarks are to be read as a whole and in context: a passage that could on its face appear ambiguous may be resolved by examining the full remarks rather than isolated sentences.
  • No error was established where a sentencing judge acknowledges an offender's limited history, compares it to a clean record, and extends some (though not equivalent) leniency in relation to rehabilitation prospects.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10; s 21A(1), s 21A(2)(d), s 21A(3)(e)
- Road Transport Act 2013 (NSW), ss 54, 110(2)(a)

Cases:
- Meis v R [2022] NSWCCA 118
- R v Price [2005] NSWCCA 285
- Saunders v R [2022] NSWCCA 174
- Taylor v R [2018] NSWCCA 255