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Court of Criminal Appeal 12 November 2004

REGINA v ROWLEY [2004] NSWCCA 388 revised - 23

[2004] NSWCCA 388

Theft & property
CRIMINAL LAW SENTENCING PRINCIPLES DRUG COURT COMPETENCY OF APPEALS

Citation: REGINA v ROWLEY [2004] NSWCCA 388 revised - 23/11/2004
Court: Court of Criminal Appeal (New South Wales)
Date: 12 November 2004
Judge(s): Adams J; Hislop J; Newman AJ

Background

The applicant was sentenced in the District Court by Milson DCJ for aggravated break, enter and steal, an offence under s 112(2) of the Crimes Act 1900 carrying a maximum penalty of 20 years imprisonment. The offending involved entry into a private residence overnight, with property stolen including bank cards, personal items, a mobile phone, and cash totalling over $3,000 in claimed compensation. One of the stolen bank cards was subsequently used to withdraw $1,000, though that conduct was the subject of a separate summary charge not amenable to this appeal.

His Honour imposed a sentence of two years and three months imprisonment, running from 19 May 2003 to 18 August 2005, ordered to be served concurrently with a sentence imposed for a similar offence dealt with separately. The applicant sought leave to appeal that sentence before the Court of Criminal Appeal.

The matter came before the full collegiate bench of the Court of Criminal Appeal after an earlier judgment resolved jurisdictional questions. Separately, Newman AJ had addressed related Category 1 offences under s 5AF of the Court of Criminal Appeal Act 1912.

  • Whether the sentencing judge gave proper weight to the applicant's plea of guilty
  • Whether the sentencing judge gave due weight to the applicant's subjective circumstances in mitigation
  • Whether a non-parole period ought to have been set rather than a single fixed term
  • Whether the sentence was within the appropriate range, such that appellate intervention was warranted

Decision

The Court rejected the submission that the sentencing judge failed to give proper weight to the plea of guilty. Noting the applicant's criminal antecedents and the objective gravity of the offence, the Court was satisfied that the sentence imposed was, if anything, at the lower end of the appropriate range.

On the question of subjective circumstances, the Court agreed with the approach taken by Newman AJ in the related Category 1 matters: the applicant's personal circumstances offered very little by way of mitigation. The Court drew on the principles stated in R v Ebsworth [2002] NSWCCA 465, where Wood CJ at CL confirmed that a sentence must ensure the period actually served in custody reflects the objective gravity of the offence and any need for deterrence, even where some features capable of constituting special circumstances are present.

Regarding totality, the Court observed that his Honour had given proper consideration to that principle by ordering the sentence be served concurrently with the Category 1 sentence. The Court was not satisfied that a lesser sentence was warranted in law or should have been imposed, and so declined to intervene pursuant to s 6(3) of the Criminal Appeal Act 1912.

Leave to appeal was nonetheless granted given the Court considered the matter to be of some importance, but the appeal itself was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that appellate intervention in sentencing requires satisfaction that a lesser sentence was warranted in law and should have been imposed, a threshold not met on the facts.
  • A plea of guilty and the presence of subjective circumstances do not automatically reduce a sentence where the objective gravity of the offence and the offender's antecedents significantly limit the mitigating weight of those factors.
  • Under the principles affirmed in R v Ebsworth, establishing facts capable of constituting special circumstances does not make variation of the statutory non-parole ratio mandatory; it remains a matter of discretion.
  • The sentencing court's use of concurrent sentences for related offences of similar character was treated as a legitimate and adequate means of giving effect to the totality principle.
  • Leave to appeal may be granted even where the appeal ultimately fails, where the Court considers the issues raised to be of sufficient importance to warrant a full hearing.

Legislation and Cases Referenced

Legislation:
- Court of Criminal Appeal Act 1912 (NSW), including s 5AF
- Criminal Appeal Act 1912 (NSW), including ss 5(1)(c) and 6(3)
- Crimes Act 1900 (NSW), s 112(2)

Cases:
- R v Ebsworth [2002] NSWCCA 465
- R v Simpson [2001] NSWCCA 534
- R v Bertoncello NSWCCA, 5 November 1997
- R v Cook [2002] NSWCCA 140