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Court of Criminal Appeal 11 April 2025

MacBlane v R

[2025] NSWCCA 52

Theft & property
CRIME APPEALS APPEAL AGAINST SENTENCE APPLICATION FOR LEAVE TO APPEAL

Citation: MacBlane v R [2025] NSWCCA 52
Court: Court of Criminal Appeal
Date: 11 April 2025
Judge(s): Garling J, Chen J, Sweeney J

Background

The applicant pleaded guilty in the District Court to one count of break, enter and commit a serious indictable offence (larceny). The offence carried a maximum penalty of 20 years imprisonment and a standard non-parole period of five years. The sentencing judge imposed a total term of three years and three months, with a non-parole period of two years and three months.

The applicant sought leave to appeal on two grounds. First, he contended the sentencing judge wrongly factored in his criminal history and the fact he was subject to an Intensive Correction Order (ICO) at the time of the offence when assessing the objective seriousness of the offending. Second, he argued the judge had mishandled evidence relating to an assault the applicant suffered while in custody, including misstating the facts, minimising its significance, and denying procedural fairness.

  • Whether a sentencing court errs by taking into account an offender's criminal record and conditional liberty status when assessing the objective seriousness of the offence.
  • Whether the guideline judgment in R v Ponfield (1999) remains applicable without qualification following the enactment and subsequent amendment of the Crimes (Sentencing Procedure) Act 1999 (NSW), particularly the introduction of s 21A.
  • Whether the sentencing judge erred in his treatment of the evidence concerning the in-custody assault and the injuries sustained by the applicant.

Decision

Ground One: Objective seriousness and criminal history

The Court found the sentencing judge erred by incorporating the applicant's criminal record and ICO status into the assessment of the objective seriousness of the offence. Both factors are properly considered as part of the subjective sentencing exercise under s 21A of the Crimes (Sentencing Procedure) Act 1999, not as elements that affect where the offending sits on the objective scale of seriousness. The error was established.

Garling J added substantive remarks on the status of R v Ponfield, the 1999 guideline judgment that the sentencing judge had been referred to in unqualified terms. His Honour traced the significant legislative developments following Ponfield, including the introduction of ss 3A, 21A, and the standard non-parole period regime in Division 1A of Part 4 of the Act. He noted that Ponfield was delivered eight days after the Crimes (Sentencing Procedure) Act 1999 received assent, with no indication the Act's terms were drawn to the Court's attention. By the time Mapp v R [2010] was decided, Ponfield had already been described as a decision of limited utility, largely overtaken by statute. Further amendments in the Crimes (Sentencing Procedure) Amendment Act 2010 and the High Court's analysis in Muldrock v The Queen (2011) 244 CLR 120 reinforced that s 21A governs the relevant factors, and that common law factors from Ponfield cannot simply be imported without reference to the statutory framework.

Ground Two: The in-custody assault

The Court rejected this ground. The sentencing judge had received evidence and heard written and oral submissions on the assault. He was not obliged to accept all of the applicant's evidence or submissions and did not misstate the facts in the manner alleged. No error of the kind asserted was established.

Resentencing

Because error was established on Ground One, the Court re-exercised the sentencing discretion afresh. On resentencing, Sweeney J assessed the offence as below the mid-range of seriousness, consistent with the original judge's assessment, given the manner of entry, the property damage, three entries in one night, and the value of goods stolen. The applicant's lengthy criminal record and ICO status were treated as relevant to the subjective case, not to objective seriousness. His significant subjective circumstances, including childhood abuse, resulting PTSD, reduced moral culpability, and engagement with drug rehabilitation, were taken into account, along with a finding of special circumstances. The sentence ultimately reached was no less than that imposed at first instance, so the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • An offender's prior criminal history and status on conditional liberty (such as an ICO) at the time of the offence are not factors relevant to assessing the objective seriousness of the offence for sentencing purposes; they fall within the subjective sentencing exercise under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • The Court of Criminal Appeal confirmed that R v Ponfield (1999) is a decision of significantly diminished authority, having been largely overtaken by the Crimes (Sentencing Procedure) Act 1999 and its subsequent amendments, a conclusion first drawn in Mapp v R (2010) and reinforced by the High Court in Muldrock v The Queen (2011).
  • Relying on Ponfield without qualification, and without reference to the statutory framework in ss 3A, 21A, and Division 1A of Part 4, risks sentencing error.
  • A sentencing judge is not bound to accept all evidence or submissions presented in relation to subjective matters and does not err merely by declining to do so, provided the material has been considered and procedural fairness afforded.
  • Finding error in one ground of appeal does not guarantee a reduced sentence on resentencing: where the court re-exercises the discretion and arrives at an equivalent or greater sentence, the appeal will be dismissed notwithstanding the established error.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 53A, 54A, 54B
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Crimes (Sentencing Procedure) Amendment Act 2010 (NSW)

Cases
- R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435
- Mapp v R (2010) 206 A Crim R 497; [2010] NSWCCA 269
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Kentwell v The Queen (2014) 252 CLR 60; [2014] HCA 37
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- Abdul-Rahman v R [2016] NSWCCA 192
- Dickinson v R [2016] NSWCCA 301
- Kelly v R [2017] NSWCCA 82
- Ahmad v R [2021] NSWCCA 30