Citation: R v O'HEIR [2003] NSWCCA 126
Court: New South Wales Court of Criminal Appeal
Date: 2 May 2003
Judge(s): Levine J; Simpson J
Background
The applicant, a young adult offender aged eighteen at the time of the offences, pleaded guilty in the Local Court to ten counts of break, enter and steal. The offences were committed over approximately two months between December 2001 and February 2002, and were driven by the applicant's heavy amphetamine dependence. He was also on parole and subject to bail conditions at the time.
In June 2002, Judge English of the District Court sentenced the applicant to a principal term of five years imprisonment with a three-year non-parole period for the two most serious counts (offences committed on occupied premises), together with a series of fixed terms for the remaining counts. Four additional matters, including resisting arrest and escape from lawful custody, were taken into account on a Form 1 schedule.
The applicant sought leave to appeal against the severity of those sentences in the Court of Criminal Appeal.
Legal Issues
- Whether the sentencing judge gave insufficient weight to the applicant's age as a young adult offender
- Whether the sentencing judge gave insufficient weight to the hardship and risks associated with the applicant serving time in protective custody in an adult prison
- Whether the sentencing judge gave insufficient weight to the applicant's grossly disadvantaged and deprived background, by analogy with the principles applied in cases involving Aboriginal offenders
- Whether the overall sentences were manifestly excessive
Decision
On the question of age, the Court noted that the sentencing judge had explicitly described the applicant as "very, very young" and had clearly articulated the principle that rehabilitation should take priority over punishment and general deterrence for young offenders. Levine J was not persuaded that this attention to age had failed to be reflected in the outcome. The Court also observed that, as an adult, the applicant did not attract the same degree of reduced weight for general and specific deterrence as would apply to a juvenile.
Regarding protective custody, the sentencing judge had specifically acknowledged that this was the applicant's first time in an adult prison, that he was in strict protection, and that he had already been assaulted. The Court found no basis to conclude that these conditions had been inadequately weighed.
The Court accepted that the applicant's background was "tragic" and severely deprived, including that his drug dependence had been initiated by his mother when he was thirteen years old. Although the principles in R v Fernando strictly apply to Aboriginal offenders, the Court found that the sentencing judge was alive to all the equivalent components of disadvantage and had addressed them with care. Levine J adopted observations from R v Powell confirming that the general concept of a deprived background is a legitimate sentencing consideration, regardless of Aboriginality.
Having found that all four grounds failed, the Court concluded that the sentences in fact reflected proper consideration of each of those factors. Leave to appeal was granted, but the appeal was dismissed.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Fernando principles, which direct attention to disadvantaged background as a mitigating factor in sentencing, are strictly confined to Aboriginal offenders, but the underlying concept of a grossly deprived background remains a legitimate and weighty sentencing consideration for any offender.
- Where a sentencing judge expressly addresses mitigating factors such as youth, protective custody conditions, and disadvantaged background in remarks on sentence, an appellate court will examine whether those factors are reflected in the outcome, not merely whether they were mentioned.
- A young adult offender does not attract the same degree of reduced weight for general and specific deterrence as a juvenile offender; the distinction between juvenile and adult sentencing principles is relevant even at age eighteen.
- No error was established simply because a sentencing judge cited relevant factors at length but the applicant contended the outcome did not sufficiently reflect them; such an argument requires more than demonstrating a gap between the recitation of principles and the sentence imposed.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing statistics from the Judicial Commission are of limited utility and must be approached with circumspection.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 112 (break, enter and steal: maximum penalty fourteen years imprisonment)
Cases:
- R v Fernando (1992) 76 A Crim R 58
- R v Henry (1999) 46 NSWLR 364
- R v Ponfield (1999) 48 NSWLR 327
- R v Powell [2000] NSWCCA 108