offender: (1979) 143 CLR at pp 467, 468, 482-3, 495.
...
...
It is one thing to say that the principle of
proportionality
precludes the imposition of a sentence
extended beyond what is appropriate to the crime merely
to protect society; it is another
thing to say that the
protection of society is not a material factor in
fixing an appropriate sentence. The distinction in
principle is clear between an extension merely by way
of preventive detention, which is impermissible, and an
exercise of
the sentencing discretion having regard to
the protection of society among other factors which is
permissible."
In Baumer v
The Queen [1988] HCA 67; (1988) 83 ALR 8, a recent case from this jurisdiction,
the High Court considered at p 13 that while the existence of a bad prior
record "would make
it difficult to view the circumstances of the offence or of
the offender with any degree of leniency", it would clearly be wrong,
because
of that record, "to increase the sentence beyond ... an appropriate sentence
for the instant offence". The Court noted that
"propensity may inhibit
mitigation but in the absence of statutory authority it cannot do more", and
concluded:-
"In applying
a section like s.154, (of the
Criminal Code, which deals with dangerous acts) the
sole criterion relevant to a determination of the upper
limit
of an appropriate sentence is that the punishment
fit the crime. Apart from mitigating factors, it is
the circumstances of
the offence alone that must be the
determinant of an appropriate sentence."
17. It is clear from these statements of sentencing
law that the upper limit
of the sentencing range for a particular offence is defined by the sentence
which is proportionate to the
gravity of that offence. It follows that first
the objective facts and circumstances of the particular offence should be
considered,
so as to define the upper limit, the ceiling, of the appropriate
range of sentence. Next, factors which sound in mitigation, fall
to be
considered; and, in a countervailing way, so must any aggravating factors
which bear upon the offender's culpability or which
tend to negative any of
the mitigating factors. Thus in Veen v The Queen (No. 2) (supra) the majority
of the High Court, in concluding
that the statutory maximum punishment had
been properly imposed, appears to have considered that the mental abnormality
of the offender,
a mitigating factor, was counter-balanced by the fact that
that very condition made him a danger to society when at large. Where
an
offender has a prior criminal record a heavier sentence cannot be imposed
simply because of it, because that would involve a measure
of double
punishment; but the existence of such a record is relevant to factors such as
character and criminal propensity, and thus
may operate to negative mitigating
factors. See generally the observations in R v Baumer (No. 2), unreported,
Court of Criminal
Appeal, 20 March 1989, and of Nader J. in R v Ireland (1987)
49 NTR 10 at pp 22-24.
18. I consider that, read in their context,
his Worship's remarks about the
appellant's sentences getting "heavier and heavier all the time" do not mean
that he was sentencing
the appellant more severely simply because of his
record. It is clear from his Worship's following remarks that he took into
account
the fact that the appellant had committed "repeated offences" as a
factor which made it "extremely difficult" to extend him leniency
in
sentencing. That approach accords with that indicated by the High Court.
Other arguments
19. Ms Agresta submitted that his Worship
had given undue weight to the
sentencing objectives of retribution and deterrence and had not addressed the
nature of the offence
in the sense of evaluating the circumstances of the
offender which went to leniency as against those which went to punishment. I
do not find any substance in that argument, on the facts.
20. Ms Agresta further submitted that his Worship had erred in his approach
to sentencing, when observing that it was "serious to break into a building
... a matter that cannot be viewed leniently". In my
opinion there is no
substance in that submission. His Worship's remarks must be viewed in their
context and counsel for the defendant
had just concluded his remarks by asking
that the Court deal with his client "as leniently ... as the Court can in
these circumstances".
In his ex tempore remarks on sentence his Worship
clearly had that request in mind.
21. No information was placed before me as
to the current range of sentences
imposed for comparable offences of this type. In the absence of such
information as to the current
tariff, which should normally be furnished when
an appellant contends that a sentence for an offence which is frequently
charged
is manifestly excessive, I am unable to say that this sentence is
manifestly excessive though it is certainly heavy. Comparable sentences
can be
of utility in appeals of this type; see, for example, the observations of
Nader J. in R v Ireland (supra) at pp 17-20 and
the schedule of cases to that
judgment, at pp 30-36.
Conclusions
22. As I am unable to detect any overt error in the exercise of
the
sentencing discretion, or to find that the sentence is manifestly excessive,
appeal No. 126 of 1988 is dismissed.
23. The other
appeal, No. 127 of 1988, related to the order which his Worship
made that the appellant serve, cumulatively upon the 2 year sentence,
that
part of a former sentence service of which had been suspended when he was
paroled on 1 July 1988. His conviction for the offence
committed on 22
September meant that he was in breach of the conditions of his parole, the
period of which was then current. However,
this appeal was not sought to be
argued and accordingly it is dismissed.
24. No challenge was made to the length of the non-parole
period his Worship
fixed.
25. In the result, both appeals are dismissed and the sentences and
non-parole period imposed on 25 October
1988 are affirmed.