Citation: Honeysett v R [2023] NSWCCA 138
Court: NSW 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 on 16 August 2022 to an aggregate term of six years imprisonment, with a non-parole period of three years, for multiple property offences committed over two days in the Ashmont area of southern NSW on 26 and 27 December 2020. The principal offence was aggravated break and enter with intent to commit a serious indictable offence, committed at the home of an occupier who was asleep with her three-year-old grandchild. The applicant entered the bedroom and placed his hands on the sleeping child's back before leaving.
The remaining offences included two further break, enter and steal charges and one attempted break, enter and steal (all taken into account on a Form 1 document), a further break and enter with intent, two charges of entering inclosed lands, possession of housebreaking implements, and two larceny charges. All offences were committed in the area where the applicant himself lived at the time.
The applicant sought leave to appeal against the sentence imposed, advancing the single ground that it was manifestly excessive. Leave was granted but the appeal was dismissed.
Legal Issues
- Whether the aggregate sentence of six years imprisonment with a three-year non-parole period was manifestly excessive for the offences as charged.
- Whether the indicative sentences for individual offences, including the two six-month larceny terms, were unjustifiably high in light of the objective and subjective circumstances.
- How the sentencing court was required to balance the applicant's significant personal disadvantage ("Bugmy" features) against his lengthy history of property offending, multiple breaches of conditional liberty, and the risk of recidivism.
Decision
Wilson J (with whom Button J and Sweeney J agreed) found that the sentence was within the available range and that no error in the exercise of the sentencing discretion had been demonstrated. The court noted that the offences were committed in serious circumstances, particularly the aggravated break and enter in which a sleeping child was present and touched by the applicant. The Form 1 matters, which added significant objective gravity to the principal offence, were properly taken into account.
On the subjective case, the court accepted that the applicant had a genuinely dysfunctional background involving deprivation and abuse, features recognised under the principles in Bugmy. However, the applicant had an extensive record of property offending spanning decades, had committed these offences only days after entering community correction orders and making a written promise of good behaviour to a court, and had a history of multiple parole revocations. The court found that personal history, however disadvantaged, cannot diminish the significance of a long and persistent pattern of offending.
The court rejected the complaint that the six-month sentences for the two larceny offences were unjustified. The circumstances of each larceny, the breach of conditional liberty, and the applicant's decades-long record for dishonesty offences each independently supported those terms. Community protection was also a legitimate and weighty consideration given evidence of a high risk of recidivism.
The court further noted that the aggregate term in fact reflected a high degree of notional concurrency and that the non-parole period represented only 50 per cent of the total term, which the court described as generous. That extended parole period was designed to provide the applicant with structured support and to give him the best prospect of rehabilitation, while still protecting the community.
Orders Made
No orders were made in this decision.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing court is not required to give decisive weight to an offender's disadvantaged background where that offender has a lengthy, entrenched record of the same type of offending and has persistently breached conditional liberty.
- The Bugmy principles, which require a sentencing court to give full weight to the mitigating effect of social disadvantage and childhood deprivation, do not operate to override considerations of community protection and general deterrence where the offending is persistent and serious.
- An aggregate sentence can reflect a high degree of notional concurrency even where individual indicative sentences appear substantial, and appellate courts will consider the overall structure of the sentence rather than scrutinising each component in isolation.
- The gravity of a larceny offence is not assessed solely by the monetary value of stolen property; the circumstances in which the offence was committed, including breaches of conditional liberty, are relevant to the indicative sentence.
- No error in the exercise of a broad sentencing discretion will be found merely because a different result was open; the applicant must establish that the sentence imposed fell outside the available range.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 112(1)(a), 113(1), 113(2), 114(1)(b), 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Criminal Procedure Act 1986 (NSW), ss 166
- Inclosed Lands Protection Act 1901 (NSW), s 4(1)(b)
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