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[2026] ACTCA 20
respondent. The appeal was dismissed. The Court held that the total effective sentence of three years, five months and 20 days' imprisonment was not unreasonable or plainly unjust.
The Court of Appeal dismissed Paterson's challenge to his sentence. It found that the apartment burglary and theft were serious, caused significant harm, and were committed while Paterson was already subject to good behaviour orders. The Court accepted that rehabilitation and guilty pleas were mitigating, but considered the mitigation limited overall. It also held that the connected burglary and theft did not have to receive wholly concurrent sentences. The sentence was not so unreasonable or plainly unjust as to justify appellate intervention.
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2,026 words · generated 07/10/2026
The ACT Court of Appeal dismissed Craig Paterson's appeal against sentence in Paterson v DPP (No 2) [2026] ACTCA 20. The Court was constituted by McCallum CJ, Baker and Vandongen JJ. Its reasons are dated 3 July 2026. The appeal concerned the total effective sentence imposed by Mossop J in [2025] ACTSC 366.
1 cited instrument linked from this judgment.
In the early hours of 25 September 2023, Paterson and another man searched letterboxes outside an apartment block in Braddon. They found a key and fob pass in a letterbox and used them to enter the building and the victim's apartment. The men spent about an hour inside and stole jewellery, musical instruments, a bicycle and other items. The jewellery alone was valued at about $45,000. They also took a Toyota Camry belonging to the victim's mother, which had been parked in the basement car park ([6]-[9], [39]).
The victim later found her letterbox forced open and her property missing. The stolen jewellery had particular sentimental importance, including because some belonged to her mother, who was in hospital at the time. The victim described feeling unsafe and vulnerable, and the Court noted that she experienced lasting emotional and financial effects ([12], [41]-[43]). The car was recovered, but the agreed facts did not establish whether the other stolen items were recovered. The victim impact statement indicated that most of her property was not recovered ([40]).
Paterson pleaded guilty to aggravated burglary and theft. When he offended, he was subject to good behaviour orders for earlier offending, including theft and trespass ([2], [16]). The sentencing judge imposed an aggregate sentence of three years and three months for the aggravated burglary and theft, and a further 81 days' imprisonment for the earlier theft offence associated with a good behaviour order. Together, the total effective sentence was three years, five months and 20 days. The non-parole period was 21 months ([21], [24]-[27]).
The appeal's only ground was manifest excess. Paterson argued that the sentence was too high, including because an intensive correction order or a partially suspended sentence should have been imposed instead. The Court recorded that no application had been made to amend the appeal ground to allege specific errors, so it treated the additional submissions as arguments supporting the claim that the aggregate sentence was unreasonable or plainly unjust ([28]-[34]).
The Court began with the established standard for appellate intervention. A sentence is not manifestly excessive merely because the appeal court might have chosen a different sentence or because the sentence differs from sentences in other cases. Intervention requires a sentence from which an error in the exercise of sentencing discretion can be inferred. The relevant question is whether the sentence is unreasonable or plainly unjust ([30]-[31]).
The assessment must be contextual. The Court identified the maximum penalty, sentencing standards, the offence's objective seriousness and the offender's personal circumstances as relevant considerations ([32]). The maximum penalty for aggravated burglary under s 312 of the Criminal Code 2002 (ACT) was 20 years' imprisonment, and for theft under s 308 it was 10 years' imprisonment ([35]).
The Court emphasised features that made this offending serious. Paterson and his co-offender entered a dwelling in the early morning, when the victim might have been asleep inside. After gaining entry, they searched the apartment for about an hour and took items of substantial monetary and personal value ([37]-[43], [56]). The victim's experience illustrated that residential burglary is not merely a property offence: it can affect a person's sense of safety in their home and cause enduring emotional consequences ([57]).
The Court also considered Paterson's circumstances. The sentencing judge had taken account of his age, personal history, drug use, guilty pleas and rehabilitation efforts. Paterson had completed the Karralika Matrix program and provided material indicating progress, but the judge considered the durability of that progress difficult to assess ([20], [46]-[47]). The Court concluded that the mitigation was limited apart from the pleas and rehabilitation efforts, and that Paterson was not entitled to mitigation based on age or criminal record ([58]).
His criminal history and the circumstances of the current offending mattered particularly to deterrence. Paterson had offended while subject to good behaviour orders, and the Court regarded that as an aggravating factor. His earlier theft offending also supported the sentencing judge's concern about continued disregard for the law ([48]-[50], [58]-[59]). The Court accepted that general deterrence and specific deterrence were significant considerations in these circumstances ([59]).
Finally, the Court rejected the suggestion that the aggravated burglary and theft had to be sentenced wholly concurrently because they formed a single episode. The offences shared features, but the aggravated burglary involved the additional criminality of entering the victim's apartment as a trespasser. The partial accumulation ordered by the sentencing judge reflected that additional feature while avoiding double punishment for the intention to steal ([60]-[61]). Considering the sentence as a whole, the Court held it was not unreasonable or plainly unjust ([62]).
The judgment applies established principles of appellate review rather than announcing a new test. It relies on House v The King and Dinsdale v The Queen for the proposition that manifest excess can support an inference of sentencing error where the sentence is unreasonable or plainly unjust ([31]). It also relies on Tracey v The Queen and Munda v State of Western Australia when describing the contextual factors relevant to assessing a sentence ([30], [32]).
The judgment's approach to comparable sentences is also grounded in existing authorities. Drawing on Kabambi v The State of Western Australia, it treats sentences in comparable cases as reference points for broad consistency, not as defining a fixed permissible range ([52]). It repeats the warning in Williams-Savage v The Queen that statistics do not set the limits of the sentencing discretion and may be a blunt instrument because they do not capture the circumstances of individual offences and offenders ([55]).
The Court did make a useful jurisdiction-specific observation about terminology. It referred to R v Toumo'ua for the view that labels such as “low-range”, “mid-range” and “high-range” are unlikely to assist in this jurisdiction. In the Court's view, a sentencing judge should identify the particular features that inform the offence's objective seriousness ([36]). That observation qualifies the use of the sentencing judge's “mid-range” descriptions in this case, but the Court still assessed the concrete circumstances of the offending in detail.
The judgment also applies existing principles about concurrency and accumulation. It cites Williams-Savage and Tracey v The Queen in explaining why offences committed in one episode do not invariably require wholly concurrent sentences ([60]). It does not establish that partial accumulation is required whenever burglary and theft occur together. Its conclusion is tied to the features of this offending and the sentencing judge's assessment of total criminality ([61]).
The supplied judgment does not provide later decisions applying or distinguishing Paterson. It is therefore possible to describe how this Court relied on earlier authorities, but not to assess how later courts have treated this decision.
At [31], the Court states that error may be inferred when a sentence is “unreasonable or plainly unjust”. In plain English, an appeal court does not replace a sentence simply because it would have selected a different one. The sentence must be outside what can reasonably be justified on the sentencing material.
At [36], the Court says that low-, mid- and high-range labels are “unlikely to be helpful” in the ACT and prefers attention to the particular features of a case. This means that labels should not substitute for explaining why the offending is serious, taking account of matters such as the time, location, manner of entry, risk of confrontation, property taken and resulting harm.
At [57], the Court says burglary of a dwelling is “much more than merely” a property offence. The passage highlights the personal impact of intrusion into a home. In this case, the victim described feeling unsafe and vulnerable and ultimately moving elsewhere ([41]-[43]).
At [60], the Court states that a single episode of offending does not mean the sentences “should have been made wholly concurrent”. In plain English, offences committed together can still represent distinct criminality for sentencing purposes. The following paragraph explains the Court's application: the burglary involved trespassory entry into the apartment, as well as theft, and the sentence structure reflected both aspects ([61]).
At [62], the Court concludes that Paterson failed to overcome the “high threshold for intervention”. The Court's bottom line was that this sentence could not be characterised as unreasonable or plainly unjust in light of all the circumstances.
The judgment is most directly relevant to appeals claiming that an aggregate sentence is manifestly excessive. It identifies the need to assess the whole sentencing context rather than relying on one feature, such as the length of the term or a comparison with a single earlier case ([30]-[32], [52]-[55]).
It is also relevant to residential burglary cases where the victim was not present during the offence. The Court considered that the time and place still mattered because the offender could appreciate a real risk that the resident might be home and in bed ([37]-[38]). The judgment gives particular attention to the consequences of intrusion into a dwelling, including a victim's lasting sense of insecurity and the sentimental value of stolen property ([41]-[43], [57]).
For sentencing submissions involving related offences, the decision is relevant where a party argues that a single episode requires wholly concurrent sentences. The Court's reasoning indicates that the relationship between offences must be assessed alongside their distinct elements and the overall criminality. Here, trespassory entry was an aspect of the aggravated burglary beyond the theft itself ([60]-[61]).
The decision may also be relevant where offending occurs during the currency of good behaviour orders. The Court treated that circumstance as aggravating and as relevant to specific deterrence and the appropriateness of a non-custodial disposition ([49], [58]-[59]). These are features of the Court's reasoning on this record, not a statement that every case involving a good behaviour order must receive the same sentence.
The material provided contains the reasoning in Paterson and the earlier authorities it cites. It does not contain any later judgments referring to Paterson. No conclusion can therefore be drawn from this source about whether later courts have followed, distinguished, limited or otherwise treated the decision.
The judgment itself shows the authorities it regarded as relevant. It relied on House and Dinsdale for the appellate error framework, Tracey and Munda for the contextual assessment, and Kabambi and Williams-Savage for the proper use of comparable sentences and statistics ([30]-[32], [52]-[55]). It also applied Williams-Savage and Tracey when addressing concurrency and accumulation ([60]-[61]). These citations show the Court situating its decision within existing sentencing principles; they are not evidence of how later courts have treated Paterson.
The judgment does not decide how the manifest-excess test would apply to materially different circumstances, such as a burglary without a risk that the resident might be present, materially different levels of loss, or a stronger record of sustained rehabilitation. Its reasoning is expressly tied to the facts and personal circumstances before it ([37]-[51], [56]-[62]).
The Court did not determine specific alleged errors in the sentencing judge's treatment of the maximum penalties, totality or concurrency. The written submissions raised points about those matters, but no application was made to amend the appeal ground, and the Court treated them as supporting the sole manifest-excess ground ([33]-[34]). The decision therefore should not be read as resolving every possible specific-error argument about those topics.
The Court also did not decide whether an intensive correction order or partially suspended sentence would have been appropriate on a different record. It reviewed the overall sentence under the single ground of manifest excess and concluded that the high threshold for intervention had not been met ([28]-[29], [62]).
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Paterson v DPP (No 2) Citation: [2026] ACTCA 20 Hearing Date: 24 March 2026 Decision Date: 3 July 2026 Before: McCallum CJ, Baker and Vandongen JJ Decision: The appeal is dismissed. Catchwords: CRIMINAL LAW – APPEAL – Appeal against sentence – Appealing on the ground of manifest excess – where appellant committed aggravated burglary and theft whilst on a good behaviour order – where appellant submitted that an intensive correction order or partially suspended sentence should have been inferred – no application to amend the grounds of appeal for specific error – minimal mitigating factors – failure to overcome the high threshold for appellate intervention Legislation Cited: Criminal Code 2002 (ACT) ss 308, 312 Public Order (Protection of Persons and Property) Act 1971 (Cth) Cases Cited: Kabambi v The State of Western Australia [2019] WASCA 44 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Field v The Queen [2020] NSWCCA 105 House v The King [1936] HCA 40; 55 CLR 499 Munda v State of Western Australia [2013] HCA 38; 249 CLR 600 R v BC [2019] ACTSC 233 R v Catanzariti [2020] ACTSC 326 R v Elphick [2021] ACTSC 9 R v Horan [2020] ACTSC 189 R v Pham [2015] HCA 39; 256 CLR 550 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Tracey [2020] ACTSC 28 R v Booth [2016] ACTSC 365 Tracey v The Queen [2020] ACTCA 51 Veen v The Queen (No 2) (1988) 164 CLR 465 Williams-Savage v The Queen [2022] ACTCA 58 Parties: Craig Paterson (Appellant) Director of Public Prosecutions (Respondent) Representation: Counsel C Mutharajah (Appellant) N Deakes (Respondent) Solicitors Owen McBride (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: ACTCA 39 of 2025 Decision Under Appeal: Court: ACT Supreme Court Before: Mossop J Date of Decision: 15 August 2025 Case Title: DPP v Paterson (No 2) Citation: [2025] ACTSC 366 Court File Number: SCC 171 of 2024 THE COURT:
During the early hours of the morning of 25 September 2023, the appellant and another man searched through several letterboxes situated outside a block of apartments in Braddon. In one of those letterboxes, the men found a key and a fob pass which they used to gain access to the victim's apartment. Once inside the victim's apartment the men stole several personal items, including jewellery worth over $45,000 as well as a car owned by the victim's mother that was parked in the underground car park of the apartment block.
At the time he committed those offences, the appellant was subject to good behaviour orders for driving-related offences, trespass and theft.
The appellant ultimately pleaded guilty to offences of aggravated burglary and theft, and he was then sentenced to a total effective sentence of three years, five months and 20 days' imprisonment. An order was made that the appellant serve a non-parole period of 21 months.
The appellant now appeals against the total effective sentence that was imposed. The sole ground of appeal on which he relies is that the total effective sentence is manifestly excessive.
In explaining why we have reached the conclusion that the appeal must be dismissed, it is convenient to begin with a summary of the factual basis on which the appellant was sentenced. Because a claim that a sentence is manifestly excessive necessarily proceeds based on the sentencing judge's findings of fact, the following is drawn from his Honour's sentencing remarks.
Facts
At 4:43am on 25 September 2023, two men riding bicycles arrived at an apartment block in Braddon where they looked through the letterboxes at the front of the building. The appellant was one of those men.
The appellant found a key and fob pass to one of the apartment units in the letterbox for that unit, which he and his co-offender then used to enter the underground car park of the apartment block. A short time later, the appellant and his co-offender used a lift in the basement car park to gain access to the level on which the victim's unit was located. Just over an hour later, the appellant exited the car park through a roller door riding a bicycle. The co-offender followed, driving a Toyota Camry that was the property of the victim's mother.
The victim returned to the apartment block later the following day. Upon her arrival the victim noticed that her letterbox had been forced open and that her spare key and fob pass were missing. When she then went to her unit, she noticed that several things were missing, including jewellery valued at approximately $45,000, musical instruments and related items valued at around $6,000, a bicycle and associated items valued at about $3,000, as well as other items the total value of which was also about $3,000.
The victim also discovered that her mother's Toyota Camry, which was usually parked in the apartment building's basement, was missing. Police found that car on 28 September 2023, but the appellant was not in the car at that time.
A few days later, police obtained a search warrant to search the appellant's home. During the search of his home, the appellant made some admissions to police that bore upon his involvement in the offences as one of the two men who had entered the victim's unit and stolen the items to which reference has already been made.
Although the appellant ultimately pleaded guilty to the offences, he claimed to have limited recollection of the offending because of his heavy methamphetamine use at the time.
In her victim impact statement, the victim wrote about the sentimental significance of the jewellery that was stolen, and its connection to her mother who was sick in hospital at the time of the offending. The victim also said that the offending had made her feel physically unsafe and highly vulnerable.
According to the victim, bags of drugs and other items associated with drug dealing were found in her mother's car when it was recovered by police. It was also found to be contaminated with methamphetamine or other illicit drugs.
The sentencing remarks
The sentencing judge took into account the facts of the offending and the victim impact statement before he turned to assess the objective seriousness of the offending. In that regard, his Honour concluded that the offence of burglary was aggravated because it had been committed in company. He also observed that the offending took place in a residence during the early hours of the morning and that, while the victim was not present, she may well have been. Nevertheless, the sentencing judge accepted that the offending did not involve any breaking other than in connection with the theft of the fob pass and the key from the letterbox. Ultimately, his Honour concluded that the burglary offence was a "mid-range offence".
The sentencing judge found that the offence of theft was serious because it involved stealing several items of substantial value from a residential premises and that, given the value and nature of the property stolen, it was also a "mid-range offence".
His Honour noted that, by offending, the appellant was in breach of a number of good behaviour orders to which he was subject at the time. In that regard, on 26 April 2022, the appellant committed a trespass offence under the Public Order (Protection of Persons and Property) Act 1971 (Cth) (CAN 587/2023) as well as a further offence of theft by joint commission (CAN 3989/2022). As the sentencing judge observed, those offences involved the appellant and another trespassing on a building site in the early hours of the morning and stealing several items, including power tools and radios. When he was originally sentenced for those offences the appellant received good behaviour orders, both of which ran from May 2023 until May 2024.
The sentencing judge also took into account the appellant's personal circumstances, which are summarised later in these reasons.
The appellant was afforded a 17% discount on the sentences that the sentencing judge would otherwise have imposed for the offences of burglary and theft, in recognition of the utilitarian value of the guilty pleas. Further, as the appellant had served 162 days pre-sentence that had not already been taken into account the sentencing judge ordered, in effect, that the aggregate sentence commence on 6 March 2025.
The sentencing judge referred to a list of what counsel for the prosecution had submitted were comparable cases, namely R v Horan [2020] ACTSC 189, R v Catanzariti [2020] ACTSC 326, R v Tracey [2020] ACTSC 28, R v BC [2019] ACTSC 233 and R v Booth [2016] ACTSC 365.
In giving consideration to the appropriate sentences to be imposed, the sentencing judge said at [33]: The offender is old enough to know better. He has a history of disregard for the law. He has been a long-term methamphetamine user. The criminal offending in the present case was associated with that methamphetamine use. He has made considerable progress towards rehabilitation in the period between the offending and today. It is not clear how robust that progress is, but there is at least some hope that the rehabilitation may be long-lasting and that, at his age, he will be able to stay free of methamphetamine use.
Maximum sentences for the offences
The objective seriousness of the offending
The offences committed by the appellant were objectively serious. The sentencing judge concluded that the offence of aggravated burglary and the associated offence of theft were both "mid-range" offences. However, we note that in R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at [24], this Court observed that: references to low-range, mid-range and high-range objective seriousness are unlikely to be helpful in this jurisdiction. It is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case.
In the early hours of the morning, the appellant and a co-offender searched through letterboxes that were situated at the entrance to a residential apartment block in which the victim lived. Although it is not clear whether they were specifically looking for the means to access the apartment block or whether they were simply looking to steal property from letterboxes, once they located a key and a fob pass in one of the letterboxes that they had forced open, they then obtained access to the underground car park and then to the victim's apartment. It is obvious that, at least by then, the appellant intended to steal items of property from within one of the apartments.
Given the time of day, the appellant must have appreciated that it was possible that the owner of the relevant apartment might be in bed and that there was therefore a real risk that he might be confronted upon gaining access to the apartments. There was therefore the potential for the seriousness of the circumstances of the offending to have escalated.
After gaining access to the apartments, the appellant and his co-offender then spent approximately one hour searching through the victim's unit and stealing items of value. Amongst the items that were stolen was jewellery valued at approximately $45,000, musical instruments valued at over $6,000 and other personal items valued in total at about $6,000. A car was also stolen. It may be inferred that the car was used to take the victim's property away from the apartment building.
Although the car was later recovered by police, the agreed facts were silent about whether the other stolen property was ever found. Certainly, none of the stolen property was found in the appellant's possession when the police searched his residence over two months after the commission of the offences. Based on the victim impact statement it appears that most of the victim's property was never recovered.
The victim's experience of having her apartment ransacked was traumatic and caused her enduring emotional and financial impacts. As a person who was then living on her own, the offending understandably made the victim feel physically unsafe and vulnerable.
Many of the items of property that were stolen by the appellant had significant sentimental value. At the time of the offending, the victim had been looking after some of her elderly mother's jewellery while she was in hospital. Other jewellery, which had been in the victim's family for a long time, had only recently been handed down to the victim. To reduce the trauma to her mother, the victim had some of the items remade at substantial cost. Other items, such as the musical instruments, also held significant personal value and could not be replaced even with the benefit of insurance.
The appellant's personal circumstances
The appellant was 59 years of age when he was sentenced. He was born in New Zealand, where his childhood was free from violence and substance abuse. The appellant moved to live in Sydney at the age of 21 and he then became an Australian citizen. He has two daughters from previous relationships, one aged in her teens and one aged in her thirties.
The appellant completed Year 12 and then started working in information technology. However, he was last employed in that industry in 2013. When he was sentenced the appellant was living in public housing, received Centrelink jobseeker payments and he had applied for a disability support pension. He also did some casual work for cash, including car and bicycle repairs and maintenance.
The appellant owned a hotel in Canberra between 2004 and 2009. Before then he had been an occasional user of methamphetamine, but when he owned the hotel, his use became more problematic. Nevertheless, the appellant claimed at sentencing that since February 2024 he had abstained from using methamphetamine and that in May 2025 he had completed the "Karralika Matrix program" (a day program that addresses alcohol and drug use). Two reference letters identified that the appellant had benefited from completing the Karralika Matrix program and that he was making better life choices as a result.
The sentencing judge was also provided with a letter written by the appellant. In that letter the appellant said that he had remained drug free for the previous 18 months and that he had re-established a "work from home business". The sentencing judge gave that letter "some weight" but said that it was difficult to assess the "robustness of the sentiments therein expressed" because they had not been "tested or reflected in conduct beyond the completion of the Karralika Matrix program".
The appellant had an "extensive criminal history" and had been sentenced on several occasions to periods of full-time detention. Bearing in mind that the appellant had mainly committed driving offences, and that there was a period between 2011 and 2016 when he did not offend, his criminal history nevertheless demonstrated that his offending on this occasion was not an entirely uncharacteristic aberration: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 to 478.
The appellant had also been the subject of breach action, having committed offences during the currency of good behaviour orders, including where such orders were associated with the suspension of a sentence of imprisonment. This was particularly relevant to the question of whether it was open to impose a sentence other than an immediate term of imprisonment. Further, the fact that the appellant was subject to good behaviour orders at the time he committed the burglary and the theft at the victim's apartment was an aggravating factor: Field v The Queen [2020] NSWCCA 105 at [85] to [87]. It is also relevant to note that the offences that were the subject of the good behaviour orders involved the theft of items of value from someone else's property and that, to some extent, this revealed that the appellant's commission of the burglary and theft offences evidenced a continuing attitude of disobedience of the law: Veen (No 2) at 477 to 478.
The standards of sentencing customarily observed
A useful summary of the approach that should be taken to use the standards of sentencing customarily observed in the context of an appeal in which it is contended that a sentence is manifestly excessive can be found in Kabambi v The State of Western Australia [2019] WASCA 44 at [21]. In that case it was said that: [t]he range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect. When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
See also Tracey v The Queen at [48] to [50] and Williams-Savage v The Queen [2022] ACTCA 58 at [22].
In support of the contention that the total effective sentence was manifestly excessive, the appellant referred the Court to several "comparable" cases. Those cases were the same cases the prosecution drew to the attention of the sentencing judge and to which we have already referred at [19] of these reasons. It is unnecessary to summarise those cases. In our view there are significant differences in both the objective seriousness of the offending and in the subjective features of the offenders such that none of those cases could be described as truly comparable. In any event, the sentences imposed in those cases broadly reflect the observations about the sentencing statistics for offences of aggravated burglary that were made by Murrell CJ in R v Elphick [2021] ACTSC 9 at [154], namely that such an offence usually results in a sentence of between 18 months' and 3 years and 6 months' imprisonment: see also Williams-Savage at [23]. Further, it was noted in Elphick that an offence of theft usually results in a sentence of between six and 18 months' imprisonment.
However, we also bear in mind that in Williams-Savage this Court observed at [22] that: while bare sentencing statistics may establish the range of sentences that have been imposed in the past for a particular offence, the statistics do not fix the permissible bounds of the sentencing discretion in a particular case. See, eg, Barbaro v The Queen [2014] HCA 2; 253 CLR 58, [41], Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428, [51]-[52]. For dishonesty offences such as burglary and theft, culpability varies significantly between cases: see, eg R v Bessant [2020] ACTSC 365. Accordingly statistics, which say nothing about the circumstances of individual offences or offenders, are a blunt instrument and should not be afforded undue weight. Is the total effective sentence manifestly excessive?
Order
Paterson
DPP (No 2)
The appeal was dismissed. The Court held that the total effective sentence of three years, five months and 20 days' imprisonment was not unreasonable or plainly unjust.
In relation to the breach of good behaviour orders, the sentencing judge concluded that he would cancel the good behaviour order on the theft charge and resentence the appellant, but take no action in relation to the trespass charge. After reducing the sentence of 90 days' imprisonment he would otherwise have imposed by 10%, on account of the appellant's plea of guilty, the sentencing judge imposed a sentence of 81 days' imprisonment, which he said should be served cumulatively on the other sentences.
The sentencing judge then said that, in light of the appellant's criminal history and the type of offending involved in the aggravated burglary and theft offence, general and specific deterrence were "very prominent sentencing considerations". In that regard, the sentencing judge specifically referred to the need to deter drug users, who consider apartments to be soft targets, from committing such offences.
His Honour accepted that the appellant had made "significant self-motivated steps towards rehabilitation, including the completion of the Karralika Matrix program", and that he appeared to be "taking steps to rehabilitate himself and get free of methamphetamine". However, the sentencing judge considered that the need for general deterrence and denunciation, together with the need to recognise the harm that was done to the victim and the community, warranted the imposition of "significant custodial penalties".
On that basis, the sentencing judge said that he was of the view that the appropriate starting point was a sentence of 30 months' imprisonment for each offence, with a discount of 17% on account of the pleas of guilty, resulting in sentences of 25 months' imprisonment. His Honour considered that the sentence to be imposed for the offence of theft should be served first and the sentence for the offence of aggravated burglary should commence after the appellant had served 14 months.
Ultimately, the sentencing judge imposed an aggregate sentence for those offences of three years and three months' imprisonment. Taking the sentence of 81 days' imprisonment for the offending that related to the good behaviour orders into account, this meant that the total effective sentence imposed was three years, five months and 20 days' imprisonment.
The sentencing judge said that an intensive correction order would not be an appropriate disposition "having regard to the gravity of the offending and the history of the [appellant's] disregard for his legal obligations, albeit in the context of his history of driving offences".
His Honour also rejected the possibility of a partially suspended sentence. Instead, he concluded that it was more appropriate to order that the non-parole period be 21 months because there was evidence that the appellant was making progress towards rehabilitation, and his enthusiasm for engaging in criminal activities in the future was likely to be on the decline. Ground of Appeal
There is only one ground of appeal. By that ground the appellant contends that the aggregate sentence of three years five months and 20 days that was imposed on him was manifestly excessive.
In both her written and oral submissions in support of that ground of appeal, counsel for the appellant argued that the aggregate sentence was manifestly excessive because the wrong type of sentence was imposed. In that regard it was submitted that it should be inferred that the sentencing judge erred by not imposing an intensive correction order or a partially suspended sentence. In the alternative, it was submitted that the aggregate sentence was manifestly excessive because it was too long.
The principles that must be applied in determining whether a sentence is manifestly excessive are well established. As this Court said in Tracey v The Queen [2020] ACTCA 51 at [37]: Appellate intervention is not justified simply because an appellate court may have a different view as to the most appropriate sentence … or where the sentence is markedly different from sentences that have been imposed in other cases ... [r]ather, the appellant must demonstrate that the sentence is such that it may be inferred that there was a misapplication of principle by the sentencing judge, although when and how the error occurred is not apparent from the judge's reasons. (Citations omitted.)
A ground of appeal that contends that a sentence is manifestly excessive asserts that, in some way, the sentencing court failed to properly exercise its discretion. Error may be inferred if the sentence is manifestly excessive in the sense that it is "unreasonable or plainly unjust": House v The King [1936] HCA 40; 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ); Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6] (Gleeson CJ and Hayne J, Gaudron and Gummow JJ agreeing at [22], Kirby J agreeing at [59]).
To determine whether a sentence is manifestly excessive, it is necessary to view it in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the relative objective seriousness of the particular offence and the personal circumstances of the offender: Tracey v The Queen at [38]; Munda v State of Western Australia [2013] HCA 38; 249 CLR 600 at [33] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).
In her written submissions, counsel for the appellant appeared to suggest that the sentencing judge had made several express errors in the exercise of his sentencing discretion. In that regard, counsel referred to the fact that the sentencing judge concluded that the burglary offence and the theft offence were both "mid-range" in respect of objective seriousness but that he imposed the same sentence for each offence, notwithstanding the differences in the respective maximum penalties. Counsel's written submissions also suggested that the sentencing judge did not apply the totality principle and argued that, as the offending was a "single episode" of criminality, the offences should have been fully concurrent or have had greater concurrency.
However, no application was made to amend the ground of appeal, and no submissions were made at the hearing of the appeal to suggest that the appellant's complaint on appeal was any broader than that the aggregate sentence that was imposed was manifestly excessive. In those circumstances, we proceed on the basis that to the extent any of the submissions made on behalf of the appellant might otherwise contend that the sentencing judge fell into specific error they are to be understood as merely elucidating the proposition that the aggregate sentence was unreasonable or plainly unjust.
The victim also wrote in her impact statement about the fact that she had to clean up after the break-in, that everything felt dirty and that she threw many things out. She said that she never felt as though she could be safe and relaxed in her apartment and that she decided to move elsewhere.
The sentencing judge noted that the appellant had been assessed as being a medium risk of reoffending.
The appellant claimed to have limited memory of the offences because of his heavy methamphetamine use at the time. However, he pleaded guilty and was afforded a 17% discount on the sentences that the sentencing judge would otherwise have imposed for the offences of burglary and theft, and a 10% discount for the offence of theft that was previously the subject of a good behaviour order. The appellant does not complain about those discounts.
The offences of aggravated burglary and theft were serious. In company with another person, the appellant dishonestly gained access to the victim's apartment and did so in circumstances in which there was an obvious risk that the victim may have been at home and in bed, where she was entitled to feel safe. The appellant and his co-offender then stole several items from within the victim's apartment which were of considerable monetary and sentimental value. Unfortunately, it seems that none of that property was recovered. A car was also stolen, but it was recovered sometime after the offence, albeit in circumstances in which it had been contaminated by illicit drugs. Although there was no evidence that the appellant was responsible for the state of the car when it was recovered, it would not have been in that state had it not been stolen in the first place.
The appellant's criminal behaviour caused a great deal of distress to the victim. As might be expected, the victim felt unsafe and vulnerable because of what the appellant did. The victim's articulation of the impacts visited on her because of the appellant's offending clearly demonstrate why burglary offences must be understood as amounting to much more than merely property offences, particularly when they are committed on dwellings.
There was little mitigation other than the appellant's pleas of guilty, his efforts at drug rehabilitation and his stated, but untested, intentions to remain drug-free. The appellant was not entitled to any mitigation on account of his age or his criminal record and, by committing the offences, the appellant put himself in breach of good behaviour orders.
There was an obvious need to impose a sentence that properly reflected the overall criminality of the appellant's offending behaviour. General deterrence was also a significant sentencing consideration. Further, in circumstances in which the appellant had a demonstrated history of disregarding good behaviour orders, the need for specific deterrence loomed large.
The offence of theft, in respect of which the sentencing judge imposed a sentence of 81 days' imprisonment, was unrelated to the offences of aggravated burglary and theft. In those circumstances it was well open to the sentencing judge to order that the sentence be served cumulatively on the other sentences he imposed. On the other hand, the other offences of aggravated burglary and theft were committed as part of a single episode of offending with common features. Nevertheless, and as explained in Williams-Savage at [40] to [43] and in Tracey v The Queen at [54] to [55], it does not follow that the sentences imposed for each of those offences should have been made wholly concurrent. To suggest that such an approach should invariably be taken at least ignores the fact that unlike the offence of theft, the elements of the offence of aggravated burglary do not require proof that a person dishonestly appropriated property belonging to someone else.
As in Tracey v The Queen, the appellant did not contend that the sentencing judge erred in the exercise of his discretion insofar as it concerned concurrency and accumulation. The appellant instead argued that the total effective sentence was manifestly excessive. However, we are of the view that the sentencing judge's decision to order that the sentence imposed for the offence of aggravated burglary commence after the appellant had served 14 months of the sentence imposed for the offence of theft, properly reflected the fact that the appellant had not only stolen property but that he had also entered the victim's apartment as a trespasser. The total sentence bore a proper relationship to the overall criminality involved in the offences and yet, at the same time, it also appropriately ensured that the appellant was not doubly punished for having intended to commit theft.
The appellant has failed to overcome the high threshold for intervention on the ground that the total effective sentence is manifestly excessive: R v Pham [2015] HCA 39; 256 CLR 550 at [28] (French CJ, Keane and Nettle JJ). In all of the circumstances as we have explained them, it was not unreasonable or plainly unjust for the sentencing judge to impose a total effective sentence of three years, five months and 20 days' imprisonment.