R v Johnson

[2004] NSWCCA 140

CITATION:	R v Johnson [2004] NSWCCA 140 revised - 18/05/2004
HEARING DATE(S):	15 April 2004
JUDGMENT DATE:	11 May 2004
JUDGMENT OF:	Spigelman CJ at 1; Wood CJ at CL at 2; Simpson J at 3
DECISION:	Crown appeal dismissed
CATCHWORDS:	Crown appeal against sentence - break, enter and steal in circumstances of aggravation - break and enter a place of divine worship with intent to steal - pleas of guilty - subjective circumstances - special circumstances - applicable sentencing regime - range of objective seriousness of offences
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900, s107(1), s112 Crimes (Sentencing Procedure) Act 1999, s21A, s44, s54 Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002
CASES CITED:	House v The King (1936) 55 CLR 499 R v Way [2004] NSWCCA 131
PARTIES :	Crown - Appellant Leigh Robert Johnson- Respondent
FILE NUMBER(S):	CCA 60010/04
COUNSEL:	D Woodburne - Crown A Haesler with J Healey - Respondent
SOLICITORS:	S Kavanagh - Crown S O'Connor - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/3159
LOWER COURT JUDICIAL OFFICER :	Sorby DCJ

60010/04

SPIGELMAN CJ
WOOD CJ at CL
SIMPSON J

Tuesday 11 May 2004

REGINA v Leigh Robert JOHNSON

Judgment

1 SPIGELMAN CJ: I agree with Simpson J.

2 WOOD CJ at CL: I have read in draft form the judgment of Simpson J. I agree with the orders proposed, and with the reasons of her Honour.

3 SIMPSON J: This is a Crown appeal, asserting that sentences imposed upon the respondent in the District Court on 24 October 2003 following his pleas of guilty to two counts on an indictment (break, enter and steal in circumstances of aggravation, an offence against s112(2) of the Crimes Act 1900, carrying a maximum term of imprisonment of 20 years, and break and enter a place of divine worship with intent to steal, an offence against s107(1) of the Crimes Act, carrying a maximum penalty of imprisonment for 10 years) were manifestly inadequate. On the first count the respondent was sentenced to imprisonment for four and a half years with a non-parole period of two and a half years, dating from 2 August 2003. On the second count the respondent was sentenced to a fixed term of imprisonment for two years, commencing on 2 February 2003. It will be seen that the sentence imposed in relation to the second count is the first to commence and the sentence imposed in relation to the first count was made partially cumulative on, and partially concurrent with, it. In addition, in sentencing the respondent on the first count, the sentencing judge took into account, on a Form 1 put before him pursuant to Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Act”), two further offences of break, enter and steal.

facts

4 Chronologically, the respondent’s offences may be outlined as follows. On 4 October 2002 he broke into a house at Bossley Park by cutting a hole in the rear security screen door and by reaching in and unlocking it and then forcing open sliding glass doors. He stole a workbag and three wallets containing a sum of $130.00. The bag and the wallet, but not the money, were subsequently recovered. This was the second offence on the Form 1.

5 On 17 October 2002 the respondent broke into the office of the Mary Immaculate Church at Wetherill Park by removing glass window panels. He stole a handbag containing personal papers and a key ring. This offence was the first offence on the Form 1.

6 On 26 December 2002 the respondent and another male, who was carrying numerous tools, broke into a Croatian Catholic Church at St John’s Park. They attempted to open a safe but were unsuccessful. They forced entry into a rear office by kicking the door open and forcing open a shop within the church by jamming open a roller shutter. They ransacked the church shop. This was the second offence on the indictment.

7 On 2 February 2003 the respondent, with his brother David Johnson, walked along a street at West Hoxton knocking on front doors to ascertain whether the premises were occupied. Having located a house that was unoccupied, they broke into it by forcing a side gate and smashing a side window. They ransacked two bedrooms, and threw drawers and other items onto the floor. They removed various items of jewellery, including chains and necklaces from a jewellery box, and $30.00 from a lotto pack in a handbag in one of the bedrooms. Police were notified while the offenders were still in the premises and attended. They entered through the smashed side window. The respondent and his brother then smashed another window in order to leave the house. This gave rise to the first count on the indictment.

8 The respondent was arrested later on the day of the last offence and was interviewed but declined to answer questions about the last of the offences. In relation to the other offences he stated that he did not recall them but, on being told that his fingerprints had been identified at the various premises, he accepted that he must have committed those offences.

subjective circumstances

9 The respondent was born on 18 July 1980. He was thirteen days short of his twenty-second birthday when he committed the first offence, and twenty-two years of age at the time of committing all others. He had a criminal record which commenced in 1996, when he was sixteen years of age. His first series of offences included four counts of malicious damage, three of assaulting police, and one of common assault. They resulted in a control order for six months, under the Children (Criminal Proceedings) Act 1987, as well as an order for probation for eighteen months. Thereafter the respondent was found guilty in the Children’s Court of another charge of malicious damage, escaping lawful custody (on two occasions), common assault, two counts of attempting robbery whilst armed, wilful and obscene exposure and a breach of a community service order.

10 As an adult he has convictions for possession of prohibited drug, goods in custody (on three occasions) reasonably suspected of having been stolen, common assault, break, enter and steal (or break and enter with intent to steal) (nine counts), and trespass (three counts). In relation to a series of three break, enter and steal offences he was sentenced at Campbelltown District Court, on 21 March 2002, to varying terms of imprisonment, the longest of which was for three years with a non-parole period of fifteen months, dating from 6 April 2001. He was in fact released on parole on the expiration of the non-parole period, on 5 July 2002. That parole was current at the time of the commission of each of the present offences.

11 The respondent is the younger of two sons. The family unit was dysfunctional. His father abused alcohol and used illicit drugs and was violent towards his wife and children. His mother left the home in 1984 (when the respondent was only four years old), leaving him and his brother with their father in the home. She maintained contact with them on weekends. At times he was so fearful of his father that he refused to return home. At the age of thirteen the respondent left home, and has had no contact with his father since 1998.

12 At the age of ten the respondent began using cannabis; by the age of twelve he was a daily user. At fifteen he progressed to heroin and at eighteen cocaine. He has made at least one attempt to give up the use of drugs, but this was unsuccessful.

13 The respondent left school at the age of thirteen, in year seven. He has had two jobs, both casual, the longer of which terminated after three months.

14 Psychiatric assessment resulted in a diagnosis of personality disorder with some anti-social characteristics and depressive characteristics. He has an above average predisposition for substance abuse. He lacks insight and is not at all introspective. He has a rather negative self-image.

15 The foregoing is largely drawn from pre-sentence and psychological reports that were before the sentencing judge. The factual material contained therein was largely confirmed by the respondent in oral evidence. To that material the respondent added some information about the circumstances of his incarceration. He said that he had had no access to courses or programs whilst in custody although he would like to participate in a drug and alcohol course. He had never thought of doing so before. His mother maintains contact with him and visits him regularly. Whilst in custody he has developed an interest in drawing and an ambition to undertake, on release, a sign-writer’s course and become a sign-writer. He gave some evidence from which the judge accepted that he was remorseful for his crimes.

the applicable sentencing regime

16 The first offence in time (the second count on the indictment, to which, to avoid confusion, I will refer as the Croatian Catholic Church offence) was committed on 26 December 2002. Accordingly, the respondent stood to be sentenced pursuant to Part 3 of the Crimes (Sentencing Procedure) Act 1999 (the “Sentencing Procedure Act”), and in particular Division 1 thereof.

17 The second offence in time (the first on the indictment, to which it will be convenient to refer as the West Hoxton offence) was committed on 2 February 2003. This was the day after the commencement of amendments made to the Sentencing Procedure Act by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002. That Act introduced a new Division 1A to Part 4 of the Sentencing Procedure Act, and substantially amended s44 thereof. In respect of the West Hoxton offence the respondent stood to be sentenced under the new regime then operative.

18 The correct approach to sentencing under that regime has been comprehensively spelled out by this Court in R v Way [2004] NSWCCA 131, a case heard on the same day as the present.

19 It will therefore be possible to be brief when I come to outlining the relevant provisions of the Sentencing Procedure Act as amended.

the sentencing remarks

20 The sentencing judge was conscious that he was called upon to sentence the respondent in respect of the Croatian Catholic Church offence under the old regime, and in respect of the West Hoxton offence under the new regime.

21 He recorded the facts of each offence on the indictment. He noted that the respondent was on parole at the time of the offences, and referred to the sentencing objectives of community protection, general and special deterrence, rehabilitation and retribution. He considered that general deterrence had particular importance in this case. He observed that, in the respondent’s past history of encounters with the criminal law, he had had the benefit of virtually no rehabilitative procedures. He noted some attempts by the respondent himself to detoxify, and the respondent’s evidence that he now wished to free himself of drugs. He recited much of the subjective material to which I have already referred. He noted the respondent’s interest in drawing and sign-writing, and accepted his evidence as denoting contrition for his action. He noted the respondent’s criminal history.

22 He then turned to the individual offences, noting the different legislative schemes that applied. He found the Croatian Catholic Church offence to be objectively serious, calling for a sentence that paid due regard to general deterrence. He considered the respondent to have “some prospects” of rehabilitation, having regard to his newly awakened interest in sign-writing. He accepted that the pleas of guilty had been entered at the earliest available opportunity. Taking into account the two Form 1 offences, he sentenced the respondent to a fixed term of imprisonment for two years, commencing from 2 February 2003.

23 He then turned to the West Hoxton offence. In doing so, he referred to the new sentencing provisions and said:

“In setting the parameters for a sentence for a standard non-parole period offence the appropriate approach is as follows; first I have [to] consider where the offence lies within the range of objective seriousness for this offence. In my view the offence lies towards the bottom end of this range. In making this assessment I have to take into account some of the aggravating factors under s21A(2), in particular, that the prisoner has previous convictions and was on parole at the time of the offence. The factors I have taken into account in mitigation under s21A(3) are that the offence was a spur of the moment and not part of an organised criminal activity and that if he continues with his drawing and if he starts his drug rehabilitation program in prison he has some prospects of rehabilitation. Further I have found that the prisoner has shown remorse for his actions and pleaded guilty at the first opportunity. I have also taken into account the subjective circumstances I have set out earlier and the seriousness of the offence.”

24 His Honour then imposed a non-parole period of two and a half years with a balance of term of two years. He made this sentence partially concurrent with and partially cumulative upon the earlier imposed sentence and specified that it was to commence from 2 August 2003.

25 Pursuant to s44 of the Sentencing Procedure Act, in sentencing the respondent on the West Hoxton count, the judge was required, first to set a non-parole period, and then fix the balance of the term of the sentence which, unless the judge decided there were special circumstances, could not exceed one third of the non-parole period. The judge thus had a wide sentencing discretion which was to be exercised in accordance with well-established sentencing principles.

the Crimes (Sentencing Procedure) Act, Part 4, Division 1A

26 In a Table to Division 1A, “standard non-parole periods” are fixed in relation to certain identified offences. By s54A(2), the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for an offence of its kind. S54B governs the sentencing process in respect of offences to which Division 1A applies. Sub-ss(2) and (3) provide:

“(2) When determining the sentence for the offence, the Court is to set the standard non-parole period as the non-parole period for the offence unless the Court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.
(3) The reasons for which the Court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in s21A.”

27 Having regard to the breadth of circumstances encompassed by s21A, the effect of sub-s(3) of s54B is to incorporate the full range of sentencing considerations into the determination of reasons for departing from the specified standard non-parole period: see Way, [56] and [57].

28 Offences against s112(2) are included in the Table. The standard non-parole period prescribed is imprisonment for five years.

the Crown appeal

29 On behalf of the Crown it was contended that error has been demonstrated in the sentencing process in the following respects:

(i) in the determination that the West Hoxton offence lay at the bottom of the range of objective seriousness;
(ii) in the approach to the provisions of Part 4 Division 1A;
(iii) in the finding of special circumstances under s44(2) ;
(iv) in the imposition of a manifestly inadequate sentence.

(i) the objective seriousness of the West Hoxton offence

30 The first challenge concerned an assessment made by the sentencing judge of the objective seriousness of the offence. He concluded that:

“ … the offence lies towards [not “at”] the bottom end of [the range of objective seriousness for the offence].”

31 The Crown submitted that, having regard to a number of established factors, that determination was unsustainable. It identified those factors as:

· the statutory maximum penalty prescribed by the legislature (20 years);

· the prevalence of the offence;

· that the respondent was on parole at the time of the offence;

· that the respondent had a prior record for offences of the same kind;

· that the offence involved damage to the victim’s house, both on entry and on exit;

· the ransacking of two bedrooms in the search for property;

· the multiplicity of offences;

· the degree of planning involved.

32 In my opinion reliance on the first of these is misconceived. The statutory maximum penalty is material to demonstrating the seriousness with which the legislature views offences of the category in respect of which that maximum penalty is prescribed. S54B is directed to establishing where, in respect of offences of that category, a particular offence lies.

33 I also have difficulty with the proposition that the prevalence of offences of that category affects the objective seriousness of any individual instance of an offence within that category. Prevalence may be permitted to have a bearing on the sentence eventually imposed, by reason of the application of the principle of general deterrence, but, in my opinion, it has no bearing on the assessment of the objective gravity of a particular offence. Perceived prevalence may also explain the selection of offences included in the Table, but that does not add to the argument. The respondent’s parole status is not relevant to the assessment of objective gravity. That issue has been determined by the judgment of this Court in Way. In paras [94] to [99] the Court concluded that both antecedent criminal history and conditional liberty are relevant to the measure of punishment for the individual offender and not to the assessment of objective gravity. Accordingly, the third and fourth matters must be regarded as irrelevant to the assessment of objective gravity.

34 The remaining matters identified are, in my view, relevant to the determination of where the subject offence lies on the scale of seriousness of an offence of its type, and are all indicative of a greater, rather than lesser, degree of seriousness.

35 Further, the Crown submitted that, in coming to his determination, his Honour took into account irrelevant and impermissible mitigating factors. The Crown submission, in this respect, depends upon an interpretation of his Honour’s remarks on sentence which is not, in my view, beyond doubt. I have extracted the relevant passage above. It is not clear to me that his Honour did in fact take the mitigating factors into account in his determination of the objective gravity of the offence. It is clear that he took them into account in determining whether the standard non-parole period should be varied, and this he was undoubtedly entitled to do. In any event, even if he had taken them into account on the assessment of objective gravity, I am not persuaded that this was an error. In Way, the following was written:

“[88] In an assessment of the objective seriousness of the subject offence … attention must be given to the factual circumstances in which it occurred, which will principally depend upon the actual conduct of the offender, its consequences and any circumstances which materially contributed to, or explained, its commission. Some of the relevant factors will be elements of the offence itself. Others will fall within the list of aggravating and mitigating factors referred to in s21A(2) and (3) of the Act, so far as they relate to purely objective considerations.
…
[90] It is however necessary to reflect the distinction between circumstances which go to the seriousness of the offence considered in a general way, and matters that are more appropriately directed to the objectives of punishment.”

36 For the Crown to succeed on this aspect of the appeal, it is necessary that it establish that the finding, which is essentially one of fact, was not open to his Honour. The finding, being an evaluation, is akin to an exercise of discretion and may only be held to be wrong if it can be shown that some wrong principle was applied, or irrelevant consideration taken into account (or a relevant consideration overlooked) or that the finding itself simply was not open on the evidence: House v The King (1936) 55 CLR 499. That is a difficult enough task in any circumstances, but the Crown has a particular difficulty in undertaking it in this case. During the sentencing hearing the Crown representative submitted:

“That it is possibly a middle to less range, but again it is a matter for your Honour.”

His Honour then asked the Crown representative:

“But you seem to think it is between the lower and the middle.”

The Crown representative replied in the affirmative.

37 Had that concession not been made, I would have been more favourably disposed to the Crown submissions. What is to be evaluated is the seriousness of that particular offence relative to other offences of the same kind – that is, aggravated housebreaking. Having regard to the Crown concession at the sentencing hearing, I am of the view that the Crown should not now be permitted to have the finding reversed.

(ii) the application of Division 1A

38 The Crown also took issue with the approach taken by his Honour to the exercise required by Division 1A. It complains that:

“ … his Honour … failed to comply with the procedure that is [set out in s54B] because instead of his Honour setting the standard non-parole period or setting a shorter or longer non-parole period by reference to those matters in s21A, his Honour adopted an approach which effectively removed the standard non-parole period from consideration.”

39 The Crown then quoted the passage from the remarks on sentence which I have extracted above ([21]).

40 What was required of the sentencing judge in this respect is stated in Way in paras [72], [77], [79], [86] and [90].

41 I do not accept the criticism made. The matters identified in the extracted passage are, with the exception of one to which I will shortly refer, all matters expressly provided by s21A and s54B(3), to be matters properly to be taken into account in any determination to vary the standard non-parole period. The one exception is the reference to “some prospects of rehabilitation”. S21A(3)(h) specifies, as a mitigating factor, that an offender “has good prospects of rehabilitation” (emphasis added). His Honour did not make such a finding, and it would, on the evidence, have been difficult to do so.

42 A further criticism is that his Honour failed, as required by s54B(4), to give reasons for his departure from the standard non-parole period. I would also reject this complaint. Once his Honour had found, as he was, in the circumstances, entitled to do, that the offence lay towards the bottom end of the range of objective seriousness, then it is difficult to see how he could have imposed a non-parole period specifically targeted at offences in the middle of that range. The finding was reason enough for the departure. The other matters found in the respondent’s favour were such as independently could have justified departure, even if the offence itself were seen as a mid-range offence; in combination with that finding, they were relevant to the determination to depart from the standard non-parole period. (They were also relevant to the extent of the departure, but that is a different issue.) The remarks should, in my opinion, be interpreted as enunciating the reasons for the departure from the standard non-parole period, as well as the reasons for the extent of the departure, and for the sentence ultimately imposed.

43 In my opinion, the remarks on sentence state, with sufficient clarity, the reason for varying the standard non-parole period. The fundamental reason is the finding that the offence was not in the middle, but towards the bottom, of the range of objective seriousness. The other matters favourable to the respondent supported that determination. They, balanced with or against the aggravating features, determined the extent of the reduction of the standard non-parole period. I do not think this complaint, either, has been made good.

(iii) s44(2): special circumstances

44 Sub-ss44(1) and (2) provide:

“(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).”

45 The sentence imposed on the respondent in relation to the West Hoxton offence was not in the proportions stated in s44(2). The balance of term exceeded one third of the non-parole period. His Honour stated his reasons as:

“I also find that the prisoner’s intention to pursue drug rehabilitation and ultimately some form of training constitute a special circumstance to enable me to vary the overall statutory ration (sic).”

46 The Crown has argued that this was an impermissible reason. That is because, unless the judge found, in accordance with s21A(3)(h), that the respondent’s prospects of rehabilitation were good, s21A did not admit of such a consideration; and that his Honour did not make such a finding and was not in a position to do so. The Crown went on to argue [w/s para 48] that a matter that cannot be taken into consideration on the evaluation of the objective seriousness of an offence cannot be used to shorten the non-parole period under s44(2). Implicit in this submission is the contention that it is the objective gravity, and only the objective gravity, of an offence that dictates the fixing of the non-parole period. That would mean that, once the objective gravity of a Table offence was found to be in the middle of the range, no subjective circumstance, however powerful, could be used to vary the standard non-parole period. I would reject this proposition. S54B(3) explicitly recognises that the standard non-parole period may be varied upwards or downwards by reference to circumstances not going directly or even indirectly to objective gravity, but going instead to the circumstances of the offender (as distinct from the offence).

47 There exist a number of reasons why a judge may vary the standard non-parole period. One is that the offence is of greater or lesser objective gravity than the middle of the range; another is that aggravating or mitigating features warrant a departure from the standard non-parole period, even where the actual offence is held to be at the middle of the range of objective seriousness; and a third is a finding of special circumstances under s44(2).

48 The Crown’s submission also entails a contention that offences included in the Table are to be wholly excluded from the operation of the exception to the statutory proportions that is expressly provided by s44(2). S44 was subject to amendment at the same time as Division 1A was inserted into the Sentencing Procedure Act. It contains nothing to support a conclusion that it was intended that its operation be confined to non-Table offences. If that had been the intention of the legislature, it could very simply have been effected.

49 The point did not arise directly in Way, but was nevertheless considered. The Court concluded that the exception in s44(2) does apply to Table offences. I adhere to that view.

50 As an alternative, the Crown submitted that, if the exception in s44(2) does apply to Table offences, then, in the circumstances of the case, it was not open to his Honour to make such a finding. The Crown pointed out that, when the respondent was previously sentenced, he had been given the benefit of a variation in the statutory proportions, but took no steps towards rehabilitation on his release, and in fact abused his conditional liberty by committing these offences. The Crown also pointed to psychological evidence (not mentioned in the remarks on sentence) that the respondent was assessed “as having an above average likelihood of recidivism”.

51 The Crown submitted that, by structuring the two sentences as he did, the sentencing judge failed: to ensure that the respondent was adequately punished for his offences; to give effect to the sentencing principles of general deterrence, specific deterrence, and denunciation; to protect the community; to make the respondent accountable for his crime; or to recognise the harm done to victims and to the community. (This last submission was made in the context of the Crown’s complaint about the reduction of the non-parole period below three-quarters of the overall term: much of it was relevant to, and repeated, in relation to the final matter, the contention that the sentences were manifestly inadequate.)

52 The only reason for the reduction of the non-parole period given by his Honour being the respondent’s intention to pursue rehabilitation, other factors which may have justified such a finding may be put to one side. There is something to be said in favour of the Crown’s reliance upon the respondent’s history, and his previous failure to take advantage of rehabilitation opportunities made available to him. However, as was pointed out on his behalf, there was also evidence that, on his previous release, his supervisors had concentrated more on securing employment than on achieving drug abstinence. That is not to criticise his supervisors, but merely to note that the rehabilitation opportunities afforded to him were not as great as they might have been. Of more significance, in my opinion, is the evidence of the respondent’s recent interest in drawing and his focus on a potential career for himself on his release. Even in the context of his past repeated offending, this gave more than a glimmer of hope. Also relevant is the respondent’s age – 23 at sentencing – when it might be hoped that advancing maturity would influence his behaviour.

53 The Crown accepted that a finding of special circumstances is an essentially discretionary one and not subject to appellate review, other than on House principles.

54 I have already expressed the view that a combination of s54B(3) and s21A allows, and indeed requires, attention to all traditional sentencing considerations in relation to the fixing of a non-parole period under s44(1). There is even less reason to limit the range of available considerations in relation to the question of special circumstances under s44(2). In particular, a finding of “some” (as distinct from “good”) prospects of rehabilitation may be relevant to that question.

55 The Crown also suggested that, although he did not say so, the partial accumulation of sentences may have been a circumstance relied upon by the sentencing judge in his finding of special circumstances, and, that, if that were the case, that also was erroneous. For the reasons given in [52] above, I would reject that argument also.

56 I have concluded that the finding of special circumstances was open to his Honour.

(iv) manifestly inadequate sentence

57 In support of its contention that the sentences were manifestly inadequate, the Crown also pointed to:

· the fact that the offences were committed whilst the respondent was on parole;

· the impact of housebreaking upon victims;

· the seriousness with which the legislature views such conduct, evidenced by a statutory maximum penalty of imprisonment for 20 years;

· the multiplicity of offences;

· community expectation;

· the introduction of the standard non-parole period for the offence, (applicable only to the West Hoxton offence).

58 The total effective sentence imposed on the respondent in respect of both offences was imprisonment for five years with a non-parole period of three years. I would accept that the sentences were lenient, possibly to the point of manifest inadequacy. However, having regard to the view I have reached in relation to the exercise of this Court’s discretion, even where a Crown appeal would otherwise be successful, it is not necessary finally to rule upon that matter. The Crown has acknowledged the existence of a number of factors relevant to the exercise of discretion. These include an eleven and a half week delay in notifying the respondent of the appeal; the concession made by the solicitor appearing for the Crown in relation to the objective gravity of the offence; that, in relation to the West Hoxton offence, the co-offender (the respondent’s brother) was charged with the un-aggravated form of the offence, pursuant to s112(1) of the Crimes Act and was then prosecuted in the Local Court resulting in a sentence of imprisonment for twenty months with a non-parole period of fifteen months. (Given that the co-offender is two years older than the respondent, that matter is of even greater significance). Whilst any one of these might not have sufficed to warrant the exercise of the discretion, cumulatively they do have that effect.

59 Counsel for the Crown offered some arguments as to why these matters, either any of them alone, or one or more of them in combination, ought not give rise to the exercise of discretion in this case. It is to be observed that no explanation for the lengthy delay was provided. Counsel also pointed out that, as the respondent is not, in any event, eligible for release on parole before 1 February 2006, prejudice of the kind commonly seen where a respondent to a Crown appeal has been, or is about to be, released, does not arise. Counsel also relied upon the recency of the Division 1A amendments and the absence of appellate guidance as to their construction, as mitigating the effect of the concession made as to objective gravity.

60 I would discard this last matter as relevant to the consideration of the exercise of discretion. Where the submissions of the Crown have led a judge into error, it is more difficult (although not impossible) for the Crown to seek to rectify that error by the appellate procedure.

61 I am satisfied that, even if the sentences are manifestly inadequate, this is a suitable case for the exercise of this Court’s discretion to decline to intervene.

62 Accordingly, I propose that the Crown appeal be dismissed.

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Last Modified: 05/18/2004