Judges Must Consider a Defendant’s Personal Circumstances When Sentencing

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By Paul Gregoire and Ugur Nedim

Between May 2014 and January 2015, Tylar John Carter, along with his three co-offenders Jarrod Foley, Corey McLean and Matthew Murray, participated in a criminal group that broke into schools in the middle of the night and stole electronic goods.

The group focused on Catholic schools in unpopulated areas of western Sydney and targeted Apple products, such as MacBooks and ipads. Once the devices were in their possession, they removed their identifying stickers and sold them on websites, like Gumtree.

The men prepared for their crimes by locating wealthy schools on the internet. They dressed in dark clothing, balaclavas and gloves, and were armed with cricket bats.

Upon arriving at the schools, they looked for rooms where Apple chargers could be seen. They then either removed a glass window or jemmied open the door.

The network comes unstuck

On 7 December 2014, Carter, Foley and McLean were caught breaking into a Caltex Service Station in Winmalee to steal cigarettes. They were arrested and released on conditional bail. Whilst on bail, 19-year-old Carter committed two further break and enters, accompanied by McLean and Murray.

On 8 January 2015, an internet café was raided by NSW police and the owner was found in possession of 94 Apple computer products, which were linked to the other robbery cases in Australia.

At the request of police, Mr Carter attended Penrith police station on 24 February, where he was arrested and made a full confession.

A long list of offences

Mr Carter appeared before the NSW District Court, along with his three co-offenders, after pleading guilty to a raft of offences in the Local Court, including eight counts of aggravated break, enter and steal, contrary to section 112(2) of the Crimes Act 1900 (the Act).

This offence carries a maximum penalty of 20 years behind bars and a standard non-parole period (SNPP) of 5 years. An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars, before being eligible to apply for release on parole.

He also plead guilty to one count of aggravated break and enter with intent to steal, under section 113 of the Act. This related to the service station break in. The maximum penalty for the offence is 14 years in prison.

Carter pleaded guilty one count of disposing of stolen property, contrary to section 188 of the Act. This can land an offender up to 10 years behind bars. He also entered a guilty plea to participating in a criminal group, under section 93T(1) of the Act, which can lead to up to 5 years inside.

On 26 July 2016, NSW District Court Judge Stephen Hanley imposed an aggregate sentence of 6 years imprisonment with a non-parole period of 3 years. The sentence took into account a 25 percent discount given to Carter for the utilitarian value of his early guilty pleas, which means for the time and expense he saved to the court system and community by pleading guilty at an early stage in the proceedings.

However, both Mr Foley and Mr McClean were given the same sentence, and a lesser sentence was imposed upon Mr Murray, as he “was substantially less involved.”

Family Hardship

On 9 April this year, Mr Carter appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA). He did so on two grounds. The first was that the sentencing judge had made an error by failing to consider the offender’s history and surrounding circumstances.

Representing himself in court, Carter argued that the sentencing judge failed to consider his role in caring for his two younger brothers, who suffered multiple disabilities.

Mr Carter’s mother had testified in the District Court that her son had played an integral role in her boys’ care, who suffered from Autism, Tourette’s syndrome, ADHD, development delay and OCD, amongst other conditions.

Judge Hanley said there was evidence that Carter was of assistance to his two brothers, who his Honour referred to as only suffering from Tourette’s syndrome.

However, the judge noted that before his arrest Carter was living with his girlfriend for a year, and found that the custodial sentence would therefore not result in exceptional hardship for the family members, as he’d already been absent from the house.

Judge Hanley remarked that he would consider this in the “general mix” of subjective factors.

Errors in judgement

However, NSWCCA Justice Lucy McCallum found the judge had made an errors in two respects.

The first was he only considered the boys to have Tourette’s syndrome, when “they suffered from a constellation of debilitating disabilities which cause significant behavioural difficulties.”

The second mistake the sentencing judge had made was that he found that Mr Carter had not been assisting his mother whilst he was living away from the family home, even though she had clearly testified in court that he was still providing care “every single day.”

Assaults in custody

The second factual matter Carter raised regarding the first ground was that the judge did not adequately take into account that he had twice been seriously assaulted whilst held on remand, and that the nature of these assaults had likely caused significant and ongoing psychological harm.

Justice McCallum found that Judge Hanley had accepted Mr Carter’s evidence about the assaults, as well as that his time in custody was likely to be “more onerous than for other prisoners” because of them. However, her Honour noted that this acknowledgement was not reflected in sentencing.

Parity

The second ground put forth by Carter was that the sentencing judge made an error “when he took into account parity” with his co-offenders. As mentioned, Judge Hanley gave the same sentence to Carter, Foley and McClean, but a lesser one to Murray.

The judge’s sentencing remarks reveal that in approaching the issue of parity he had meant to consider both the objective seriousness of the crimes and the subjective circumstances of the offenders.

Carter argued his sentence should have been closer to Murray’s, as his offending was not as serious as the other two offenders. Justice McCallum did not agree. She pointed out that the charges against Carter, Foley and McClean were quite similar in amount and gravity.

However, her Honour did point out that the judge made an error in his conclusion to parity as he hadn’t considered Carter’s subjective circumstances set out in ground one. Although, the other two main offenders had no such features in their case, Carter was given the same sentence as them.

Sentence reduced

Justice McCallum said for all these reasons she was satisfied the sentencing decision “disclosed an error” and Mr Carter “should be resentenced.”

Regarding the family hardship, her Honour said it was not exceptional in this case. And she explained that there has been controversy in the NSWCCA over whether hardship that isn’t exceptional should be factored into sentencing. So, she decided to keep it in the “general mix” as Judge Hanley had.

Ms McCallum went onto explain that she agreed with the individual sentences that Judge Hanley imposed for each separate offence. Although, she was going to impose a lesser aggregate sentence, which would reflect “a slightly greater degree of concurrency.”

On 9 July this year, her Honour order that “the leave of appeal be granted,” the sentence imposed by the District Court be quashed and that Mr Carter be sentenced to a new aggregate sentence of 5 years imprisonment, with a non-parole period of 2 years and 6 months.

NSWCCA Justices Mark Leeming and Elizabeth Fullerton agreed with the findings of Justice McCallum.

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