Citation: Musa v R [2022] NSWCCA 221
Court: Court of Criminal Appeal
Date: 14 October 2022
Judge(s): Kirk JA, Harrison J, Wright J
Background
The appellant pleaded guilty in the Local Court to two serious offences: aggravated breaking and entering in company, and armed robbery with wounding in circumstances of special aggravation. Both offences carried a maximum penalty of 25 years imprisonment. Following committal to the District Court for sentencing, the appellant received an aggregate sentence of 15 years imprisonment with a non-parole period of 10 years.
The appellant's criminal history was limited. It consisted of one dishonesty offence from August 2016 and some traffic matters. The Crown had expressly declined to rely on that history as an aggravating factor at sentence.
The appellant sought leave to appeal on a single ground: that the sentencing judge erred by failing to recognise, as a mitigating factor under section 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW), that he did not have a significant record of previous convictions.
Legal Issues
- Whether the sentencing judge failed to treat the appellant's lack of a significant criminal record as a mitigating factor under section 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Whether the sentencing judge's remarks indicated that she denied the appellant any leniency at all on account of his criminal history, rather than merely a lesser degree of leniency than would have applied to a person with a fully clear criminal history.
Decision
Ground 1: Failure to apply section 21A(3)(e) as a mitigating factor
The Court accepted that the appellant's record of previous convictions was not significant (at [10]). The central question was whether the sentencing judge had sufficiently turned her mind to evaluating that record as a mitigating factor, even without expressly citing section 21A(3)(e) (at [18], [22]).
The Court held that the sentencing judge's reference to the appellant's "limited criminal history" was properly understood as a recognition of the absence of any significant record of previous convictions (at [23]). Taken in context, her Honour's remarks indicated that some leniency was afforded because of that history, not that the history disentitled him to any leniency at all (at [23]).
The Court read the sentencing judge's comparison between the appellant's "limited criminal history" and a "fully clear criminal history" as meaning the appellant received some, though not the maximum, leniency available (at [23]). The sentencing judge also expressly took his limited criminal history into account as a factor favouring his prospects of rehabilitation (at [13]). No error was established.
A sentencing judge is not required to cite section 21A(3)(e) by name or reproduce its wording to give effect to it as a mitigating factor (at [22]). The Court applied the reasoning in Saunders v R and Taylor v R to confirm that proposition (at [22]).
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- Under section 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW), an offender without a significant record of previous convictions is entitled to have that absence treated as a mitigating factor, even where the Crown does not rely on the record as an aggravating factor (at [10]).
- A sentencing judge need not expressly refer to section 21A(3)(e) or adopt its precise language to give proper effect to it; what matters is whether the judge turned their mind to evaluating the criminal record (at [22]).
- The Court of Criminal Appeal confirmed that a sentencing remark denying "the leniency available to a person of good character" does not necessarily amount to a denial of any leniency; the distinction between lesser and no leniency is material to whether error is established (at [23]).
- No error arises where a sentencing judge treats a limited criminal history as a factor favouring rehabilitation and implicitly affords some discount on that basis, even without naming the relevant statutory provision (at [13], [23]).
- A goods in custody matter dealt with under section 10 of the Crimes (Sentencing Procedure) Act does not form part of an offender's "record of previous convictions" for the purposes of section 21A (at [9]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
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