Citation: R v Fawns [2001] NSWCCA 27
Court: New South Wales Court of Criminal Appeal
Date: 19 February 2001
Judge(s): Grove J, Hulme J
Background
The appellant was sentenced in the District Court by O'Reilly DCJ on 21 March 2000 to minimum and additional terms each of 18 months imprisonment for stealing a motor vehicle, an offence under section 154A of the Crimes Act carrying a maximum penalty of five years. The sentencing judge found special circumstances, given the appellant's severe heroin addiction and the anticipated need for supervision on release.
The appellant had entered a not-guilty plea at the commencement of a multi-charge trial but pleaded guilty to the motor vehicle offence on the second day, after evidence had been led. The remaining five charges were resolved by a directed verdict in his favour. He had already spent approximately nine months in custody, though the sentencing judge declined to backdate the sentence due to at least part of that time being attributable to a parole breach.
The appellant sought leave to appeal on the basis that the sentence was excessive.
Legal Issues
- Whether the availability of Local Court jurisdiction over the offence (where the maximum penalty is two years) was a relevant mitigating factor the sentencing judge failed properly to consider
- Whether the sentencing judge's failure to expressly acknowledge the guilty plea constituted an error
- Whether the sentence was excessive having regard to sentencing statistics and the nature of the offence
Decision
Hulme J acknowledged two potential shortcomings in the sentencing remarks: the judge did not explicitly address the cap on penalties available in the Local Court (which the Crown accepted was a relevant consideration), and made only passing reference to the guilty plea. These omissions raised the question of whether all relevant matters had been taken into account.
However, Hulme J gave limited weight to the guilty plea. The appellant had been found driving the stolen vehicle, offered no reasonable explanation, and his guilt was beyond any real argument. In those circumstances, the plea warranted negligible mitigation.
On the statistical argument, Hulme J acknowledged that statistics showed the sentence was high relative to comparable offences, but declined to treat them as determinative. He observed that sentencing statistics can sometimes reflect inadequate attention to the penalties Parliament has prescribed, and that those prescribed penalties, together with the appellant's criminal record, were more important considerations in the circumstances.
The appellant's record was extensive and serious. He had been offending since at least August 1991, had prior motor vehicle offences, and had been sentenced to two years' imprisonment for armed robbery in 1994. Critically, he committed the current offence while on parole from that sentence, which the Court identified as an aggravating factor. Hulme J concluded that any proper sentence had to fall in the upper half of the five-year range and refused leave to appeal. Grove J agreed.
Orders Made
- Application for leave to appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that the availability of Local Court jurisdiction over a charge is a relevant consideration in the exercise of the sentencing discretion, and that it "can" (rather than "must") operate as a mitigating factor.
- A late guilty plea entered in circumstances where guilt is obvious beyond any reasonable argument may be entitled to negligible weight in mitigation.
- Sentencing statistics, while relevant, are not determinative; they may sometimes reflect insufficient judicial attention to the maximum penalties prescribed by Parliament for a particular offence.
- Committing an offence while on parole is an established aggravating factor in sentencing, capable of significantly elevating the appropriate penalty within the prescribed range.
- In dismissing the appeal, the Court applied the principle from Veen v The Queen (1988) 164 CLR 465 that where an offence reflects a continuing attitude of disobedience of the law rather than an isolated aberration, retribution and protection of society may justify a more severe sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 154A (stealing a motor vehicle)
Cases:
- R v Bloomfield (1998) 44 NSWLR 734
- R v Malik (unreported, NSW Court of Criminal Appeal, 22 July 1991)
- Veen v The Queen (1988) 164 CLR 465