Citation: Honeysett v R [2023] NSWCCA 138
Court: Court of Criminal Appeal
Date: 16 June 2023
Judge(s): Button J, Wilson J, Sweeney J
Background
The applicant was sentenced in the District Court to an aggregate term of 6 years imprisonment with a non-parole period of 3 years, following guilty pleas to multiple property offences committed over two days in the Ashmont area of southern New South Wales. The offences, all committed on 26 or 27 December 2020, included aggravated break and enter with intent, break enter and steal, entering inclosed lands, possessing housebreaking implements, and larceny.
The most serious offence involved the applicant entering a locked home at night, entering the bedroom where the occupier lay in bed beside her sleeping three-year-old grandchild, placing his hands on the child's back, and then leaving without stealing anything. The applicant had a criminal history spanning 32 pages, dating from 1982, and was subject to parole and multiple Community Correction Orders at the time of the offending.
The applicant sought leave to appeal against sentence on the single ground that it was manifestly excessive.
Legal Issues
- Whether the aggregate sentence of 6 years imprisonment with a 3-year non-parole period was manifestly excessive in all the circumstances
- Whether the sentencing judge gave adequate weight to the applicant's substantial subjective case, including his dysfunctional childhood, mental illness, drug and alcohol dependency, and early guilty pleas
- Whether the indicative sentences for individual offences, including the larceny counts involving low-value property, were disproportionate
Decision
Ground 1: Manifest Excess
The Court confirmed that a sentence is manifestly excessive only where it falls outside the available range of sentences such that it is plainly unjust or unreasonable, and that appellate intervention is warranted only if the range was exceeded in a way suggesting some misapplication of principle (at [81]). It is not sufficient that the appellate judges might themselves have imposed a lesser sentence at first instance (at [82]).
The Court found that the sentencing judge gave full and generous weight to the applicant's subjective case. Her Honour accepted the causal connection between the applicant's mental illnesses and his offending, significantly reduced his moral culpability accordingly, declined to apply general deterrence, allowed for his tragic childhood and institutionalisation, and extended the maximum 25% discount for early guilty pleas (at [83]). The Court found no error in that approach.
The objective seriousness of the offences
The Court rejected the submission that the offences were minor. The gravity of the offence at Ms Wray's home lay not in the value of any property taken, but in the distress and fear necessarily caused to occupants whose locked home was entered at night by a stranger who stood beside a sleeping child (at [86]-[87]). The indicated sentence of 5 years also reflected three additional Form 1 offences, each carrying a maximum of 14 years, and the Court noted there was no reason to expect that uplift to be small (at [88]).
The larceny offences, while involving low-value property, were committed in the presence of witnesses, in breach of CCOs entered only days earlier, and against the background of decades of dishonesty offending. Community protection was a legitimate sentencing consideration given the applicant's high assessed risk of recidivism (at [89]).
Aggregate sentence and ratio
The Court noted that the applicant's submissions failed to account for the significant notional concurrency reflected in the aggregate term, and for the leniency inherent in fixing the non-parole period at 50% of the total term. The structure of the sentence gave the applicant an extended period of supervised parole to support his rehabilitation while protecting the community (at [90]-[91]).
The Court concluded that the sentence was within the available range and that the sentencing judge's broad discretion did not miscarry (at [92]).
Orders Made
- Leave to appeal is granted
- The appeal is dismissed
Key Takeaways
- A sentence will be manifestly excessive only if it falls outside the available range of sentences such that it is plainly unjust or unreasonable; the fact that appellate judges might have imposed a lesser sentence is not the test (at [81]-[82]).
- The Court of Criminal Appeal confirmed that the gravity of an aggravated break and enter committed in an occupied dwelling at night is assessed not merely by reference to property stolen, but by the fear and loss of security suffered by occupants, including where no property was ultimately taken (at [86]-[87]).
- Where an offender is subject to parole and multiple Community Correction Orders at the time of offending, breach of that conditional liberty remains a significant statutory aggravating factor, even where the individual offences are of low monetary value (at [85], [89]).
- Sentencing courts may appropriately reduce an offender's moral culpability and decline to apply general deterrence where offending is causally linked to mental illness, while still imposing a sentence that reflects denunciation, accountability, and community protection (at [70], [91]).
- A subjective case involving dysfunctional upbringing, institutionalisation, mental illness, and substance dependency as described in the Bugmy line of authority can attract substantial leniency in sentence structure without requiring a result that would fall outside the available range where objective seriousness and criminal history are significant (at [83]-[84]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 ( NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Inclosed lands Protection Act 1901 ( NSW)
Cases
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
- Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14