Written by Andrew Fraser
Published under Offences
August 29, 2016
Great care needs to be taken when using statistics during sentencing submissions at courts, as a recent ACT Court of Appeal judgment confirms.
The old legal maxim that “every case turns on its own facts and circumstances” holds true as much today as when it was first uttered.
The recent ACT decision dealt with a man convicted of driving a motor vehicle without consent, driving whilst disqualified, attempted burglary, attempted aggravated robbery, obstructing police, possessing an offensive weapon, theft, burglary and possessing an article with intent to use it in the course of a burglary.
The Court said, “Bare statistics do not provide a reliable guide to appropriate sentencing because they refer only to sentence lengths, saying nothing about why a sentence was fixed as it was or whether the sentencing pattern reflects a correct approach to sentencing.”
That said, statistics, “to the limited extent that they may be relevant”, suggested that the sentences imposed in this particular case had been well within the usual range.
When sentenced by a single judge of the ACT Supreme Court, the accused man had received a total of four years and five months’ imprisonment with a non-parole period of two years and eight months, which the Court of Appeal (Chief Justice Murrell and Justices Elkaim and Ross) found “unexceptional”.
The man, who was self-represented, had contended that the sentences were manifestly excessive.
Accumulation of sentence for the various offences was an issue much considered.
“Despite their different subject matter, the sentences that were imposed for the offences on 3 December 2014 were largely concurrent,” the Court of Appeal noted. “The sentence for drive while disqualified added only one month and 10 days to the sentence for driving a motor vehicle without consent.
“The sentences that were imposed for the three serious offences committed on 29 January 2015 (attempted burglary, attempted aggravated robbery and burglary) were wholly accumulated on the sentence for driving a motor vehicle without consent committed on 3 December 2014, and were substantially accumulated on each other.
“A substantial degree of accumulation was appropriate to mark the seriousness of each incident and the fact that there were three discrete victims, each of whom was confronted by the Appellant.”
The principle of totality had also to be taken into account, with the Court of Appeal finding, “There is no single correct approach to the structuring of multiple sentences, and there may be a variety of acceptable ways in which to implement the totality principle in a particular sentencing exercise.
“The Appellant has not shown that the manner in which the individual sentences were accumulated or the overall sentence was not ‘just and appropriate’.”
When setting a non-parole period, courts look chiefly to an offender’s prospects of rehabilitation.
“In this case, the sentencing judge concluded that the Appellant was most likely to rehabilitate from substance abuse if he undertook drug rehabilitation within the custodial setting.
“The Appellant’s prospects of maintaining rehabilitation once he re‑entered the community were somewhat uncertain.”
It found no reason to disturb the original sentence.
Do you have a matter coming up for sentence in an ACT or nearby NSW court?
Which submissions and sentencing factors will be relevant?
Should statistics be drawn on?
Lawyers who specialise in criminal law, like those at Armstrong Legal, are juggling with the many, many factors and purposes of sentencing on a daily basis. They can help you get the best possible result in your matter.