Justice Delayed is Justice Denied: NSWCCA Appeals Move at a Snail’s Pace

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By Paul Gregoire and Ugur Nedim

On 23 May 2012, Shane Hoskins and an accomplice broke into a funeral home in Moree. Mr Hoskins tried to smash through a glass panel with a rock but, when that didn’t work, he kicked in the front door and security grille.

The pair carried away a flat screen television and stereo system, which they later sold.

The next day, Hoskins noticed there was no car in the driveway of a home in the same town. So, he and his co-offender removed several timber panels from the side of the house. Hoskins’ accomplice then climbed through the hole and passed a number of items out to him.

This time, the booty included a flat screen television, laptop, gaming console and cordless drill.

At a later date, Mr Hoskins was defending himself in court against other charges, when he decided to confess these crimes, along with a number of others, as he “just wanted a clean slate.”

So, the offender drove around Moree with local police officers and pointed out the locations where he’d committed a series of crimes.

Aggravated offences

Mr Hoskins pleaded guilty in Moree Local Court to two counts of aggravated break, enter and steal, contrary to section 112(2) of the Crimes Act 1900. The maximum penalty for the offence is 20 years imprisonment, and standard non-parole period (SNPP) of five years applies to the crime.

An SNPP is a guidepost or reference point for the sentencing judge to consider when determining the minimum time an offender will need to serve behind bars before being eligible to apply for release on parole.

An aggravated offence is when an offender’s culpability or the injurious consequences of a crime are increased due to the circumstances in which the offence was carried out in. Mr Hoskins’ crimes were aggravated as he committed them with someone else.

Sentencing in the District Court

NSW District Court Judge Colin Charteris sentenced the offender on 3 April 2014. His Honour imposed a sentence of 3 years prison time, with a non-parole period of 18 months, for the offence in respect of the funeral home.

In handing down a sentence for the second offence, a list of additional charges were taken into consideration by the judge, as in accordance with section 32 of the Crimes (Sentencing Procesure) Act 1999.

A total of five crimes committed in 2012 were considered under that section. These comprised one count of larceny, contrary to section 117 of the Crimes Act, which carries a maximum penalty of 5 years gaol time, and four other counts of break, enter and steal, one of which was carried out in breach of bail.

For the second offence, Judge Charteris handed down a sentence of 3 years and 6 months, with a non-parole period of 1 year, 10 months and 2 weeks. The judge ultimately handed down an aggregated sentence of 5 years in prison, with a non-parole period of 2 years and 6 months.

Sentence discounts

Both the initial and aggregate sentences reflected an overall discount of 40 percent.

Mr Hoskins was given a 25 percent discount due to the utilitarian value of his early guilty pleas. And, as he had confessed and pointed out his crimes to police, a further 15 percent discount was applied.

The middle range

On 24 July 2015, Mr Hoskins appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA) on three grounds. The first was that the sentencing judge had made an error when concluding the offences fell within the middle range of objective seriousness.

NSWCCA Justice Richard Button rejected this ground on the basis that “it is soundly well established that the evaluation of objective seriousness is something very much vouchsafed to the sentencing judge.”

His Honour noted that the offence against the funeral home featured stolen items that were of considerable value, while the theft at the residential home involved a degree of organisation.

The additional charges

The second ground was that Judge Charteris made an error when considering the list of additional charges in order to assess the criminality of the offence against the residential home.

It was submitted that the sentencing judge had misapplied the principles relating to the consideration of additional offences. This, the lawyers argued, was evident in three statements made during sentencing.

Justice Button explained that “sentences are not to be imposed notionally” for additionally considered offences, but should be “taken into account with a view to increasing the penalty that would otherwise be appropriate” for the offence they’re being taken into account with.

His Honour explained that this process should be carried out “by giving greater weight to personal deterrence and retribution.”

Two of the sentencing judge’s remarks implied that the actual offence against the residential home was aggravated due to the additional offences that were considered. However, Justice Button found that Judge Charteris “had simply misspoken, rather than misapplied the principle.”

The sentencing judge also remarked that the other offences “must aggravate the penalty” he imposed. Justice Button similarly found that this remark was not made in error. Accordingly, the second ground of appeal was dismissed.

Manifestly excessive

The third ground of appeal was that the sentence was manifestly excessive. To assess whether this was the case, his Honour pointed out that the initial head sentences and non-parole periods must be considered, as this is time against which the sentencing judge applied the discounts.

In removing the 40 percent discount from the offence against the funeral home, it was found that the starting point was 5 years imprisonment. In doing the same to the sentence for breaking into the residential home, the head sentence was 6 years and 3 months.

Justice Button calculated an aggregate head sentence prior to the discount of 8 years and 4 months, which his Honour considered was “simply too high, especially in light of the objective seriousness of the offences.”

Resentencing

Justice Button therefore upheld the third ground. In resentencing Mr Hoskins, the court took into account an affidavit evidencing that the offender was participating in drug and alcohol treatment, attaining a TAFE qualification, and that he had been working part-time.

The justice also noted that much of the approach taken by the sentencing judge should be replicated on resentencing. This included the 40 percent discount, the presence of the additional list of charges, and that the offences were in the middle range of objective seriousness.

On 11 September 2015, the NSWCCA resentenced Mr Hoskins to 4 years imprisonment, with a non-parole period of 2 years. This meant the appellant was eligible for parole approximately 3 and a half months prior to the new sentence being handed down.

Justice delayed is justice denied

Justice Button noted that Mr Hoskins’ appeal had “languished in the list for over two years.” And by the time the case was finalised, the appellant’s new aggregate non-parole period had expired by three and a half months, and even his original non-parole period was almost up.

“The legal profession should be aware that the court has mechanisms whereby matters that feature relatively short non-parole periods can be fast-tracked, in order to avoid successful appeals being rendered otiose,” his Honour stated.

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