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Court of Criminal Appeal 6 December 2023

Ingray v R

[2023] NSWCCA 292

Assault & violenceTheft & propertyTraffic & driving
CRIMES APPEALS WHETHER SENTENCE MANIFESTLY EXCESSIVE CONSIDERATION OF PRINCIPLES OF REMORSE NO ERROR FOUND IN SENTENCE IMPOSED

Citation: Ingray v R [2023] NSWCCA 292
Court: Court of Criminal Appeal, NSW
Date: 6 December 2023
Judge(s): Davies J, Cavanagh J (primary reasons), Sweeney J

Background

The applicant was sentenced in the District Court to an aggregate term of 11 years and 6 months, with a non-parole period of 8 years, for 34 offences committed between November 2018 and February 2019. The offending involved a series of joint criminal enterprises in which the applicant and co-offenders used stolen vehicles to travel to residential and business premises late at night, break in, and steal goods. Several incidents occurred while occupants were inside their homes.

Four of the more serious incidents involved direct confrontations with victims. In one particularly serious episode, two stolen vehicles were used to box in a victims' car at a business premises; a co-offender armed with a metal bar attempted to force entry while the victims were trapped. The victims escaped only by nudging one of the vehicles aside, and were then pursued. The applicant was on parole at the time of all this offending, having been released from custody only six weeks before the first offence.

The applicant had pleaded guilty to 20 offences before trial and was found guilty by jury of four others, including aggravated break and enter and two counts of assault with intent to rob while armed with an offensive weapon. A further ten offences were taken into account on a Form 1, and four driving whilst unlicensed matters were dealt with by certificate. The applicant sought leave to appeal the sentence, which was granted, but the appeal was dismissed.

  • Whether the sentencing judge erred in finding there was no evidence of remorse, in circumstances where the applicant relied on statements made to a psychologist and a Corrective Services officer but did not give evidence himself.
  • Whether the sentencing judge erred by failing to give sufficient regard to the impact of COVID-19 on the applicant's conditions of custody.
  • Whether the aggregate non-parole period of 8 years was manifestly excessive for 34 offences, many of which were serious.

Decision

Ground 1: Remorse. The Court found the sentencing judge's conclusion that the applicant had not demonstrated remorse was open on the evidence. The applicant did not give evidence on sentence, instead relying solely on untested statements made to a psychologist and a Corrective Services officer. Cavanagh J affirmed the well-established principle that a sentencing judge is entitled to exercise caution in assessing remorse where it is not supported by sworn, testable evidence. The applicant also sought to rely on section 21A(3) of the Crimes (Sentencing Procedure Act) 1999 (NSW), but the Court clarified that satisfying subsections (i) and (ii) of that provision does not mandate a finding of remorse. Those subsections merely preclude such a finding unless they are satisfied; they do not compel one.

Ground 2: COVID-19. The Court accepted, as a general proposition, that the impact of the COVID-19 pandemic on custodial conditions is a matter a sentencing court may properly take into account. However, the applicant had not adduced any evidence establishing that his own conditions of custody were materially affected by COVID-19, and the Crown made no concession to that effect. The sentencing judge had, in any event, referred to COVID-19 in the context of the difficulties the applicant faced from reduced visits by his son. No error was established.

Ground 3: Manifest excess. The applicant challenged only the non-parole period, not the head sentence. Cavanagh J noted that the applicant was sentenced for 34 offences, committed on 17 separate days, many of which were serious and assessed in the mid-range or just below. The Court emphasised that, whatever the indicative sentences for individual offences, the non-parole period must ultimately reflect the minimum time required in custody to account for the totality of the offending. While the sentence could fairly be described as severe, the Court was not satisfied it was manifestly excessive.

Orders Made

  • Extension of time to seek leave to appeal granted.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge is entitled to decline to find remorse where the offender does not give evidence and relies only on untested statements made to a psychologist or Corrective Services officer. The Court of Criminal Appeal confirmed that such caution is well established and does not constitute error.
  • Satisfying section 21A(3)(i) and (ii) of the Crimes (Sentencing Procedure Act) 1999 (NSW) is a precondition to any finding of remorse, not a trigger that compels such a finding once met.
  • General judicial recognition exists that COVID-19's impact on custodial conditions is a relevant sentencing consideration, but an applicant must adduce actual evidence of how those conditions affected them personally. Unsupported assertions are insufficient.
  • Where a sentence covers a large number of distinct offences committed across multiple days over several months, the non-parole period must be calibrated to reflect the totality of that criminality, not merely the weight of any single offence.
  • In dismissing the appeal, the Court confirmed that "severe" and "manifestly excessive" are not synonymous. A non-parole period may be demanding without reaching the threshold required to establish manifest excess.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure Act) 1999 (NSW), ss 21A(3), 44

Cases
- Azzopardi v R [2019] NSWCCA 306
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Imbornone v R [2017] NSWCCA 144
- Kirby v R [2021] NSWCCA 162
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- McKinnon v R [2020] NSWCCA 106
- Miller v R [2023] NSWCCA 267
- Patel v R (2022) 366 FLR 314; [2022] NSWCCA 93
- R v El-Hayek (2004) 144 A Crim R 90; [2004] NSWCCA 25
- Scott v R [2020] NSWCCA 81
- Thach v R [2018] NSWCCA 252
- Wass v R [2022] NSWCCA 143