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Court of Criminal Appeal 26 May 1999

R v BURRELL

[1999] NSWCCA 139

Theft & property
CRIMINAL LAW WHETHER SENTENCES EXCESSIVE

Citation: R v Burrell [1999] NSWCCA 139
Court: NSW Court of Criminal Appeal
Date: 26 May 1999
Judge(s): Barr J; McInerney AJ

Background

The applicant pleaded guilty in the District Court to a range of offences committed between 1990 and 1997, including larceny as a bailee (theft of a rifle he was asked to sell), three counts of receiving stolen motor vehicles (including a Jaguar worth nearly $140,000), one count of disposing of a stolen motor vehicle, and one count of possessing a prohibited weapon (a crossbow). He was sentenced by Luland DCJ to a total effective sentence of three and a half years penal servitude, comprising a minimum term of two and a half years and an additional term of one year.

The applicant sought leave to appeal against sentence on the grounds that the sentences were manifestly excessive. He raised three grounds: that the six-month concurrent fixed terms for the first and sixth counts were excessive, that the receiving sentences were out of step with comparable cases, and that insufficient weight was given to his age and previous good character.

  • Whether the six-month concurrent fixed terms imposed for the larceny and prohibited weapon counts were manifestly excessive for offences of their objective seriousness
  • Whether the sentences for the receiving counts fell outside the available range of sentencing discretion, by reference to comparable sentencing statistics
  • Whether the sentencing judge gave insufficient weight to the applicant's age and previous good character as mitigating factors
  • Whether the overall length of the sentence improperly denied the applicant consideration for home detention under the Home Detention Act 1986

Decision

The Court of Criminal Appeal accepted that the first and sixth counts warranted more lenient treatment. The applicant was effectively being sentenced as a first offender on those matters, and the crossbow possession was not among the more serious offences under the relevant firearms legislation. The Court found it appropriate to adjust the commencement dates of the remaining counts so they ran from the same starting point as the first and sixth counts, rather than accumulating on top of them.

On the statistical argument, the Court rejected the submission that the receiving sentences were excessive. It noted that the applicant's statistics related to offenders with no prior convictions, which was not the appropriate comparison. Crown statistics covering 51 higher court receiving cases between 1990 and 1998 showed minimum or fixed terms ranging from six months to five years and total terms from six months to seven years. The sentences imposed fell within that range.

The good character argument succeeded only in part. The Court accepted that good character was a meaningful mitigating factor for the earliest offence, the theft of the rifle, and for the first vehicle receiving count. However, the applicant continued to commit offences across multiple years from 1992 to 1997. By the time the later offences were committed, the Court found it could not be said he remained a person of good character.

On the home detention point, the Court concluded that an aggregate sentence of 18 months or less, the ceiling required by the Home Detention Act 1986 for a home detention order, was entirely out of the question given the overall criminality involved. The combined offending was systematic and serious, warranting substantial punishment to deter others.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences on counts 2, 3, 4 and 5 quashed
  • On each of counts 2, 4 and 5: a fixed term of 18 months commencing 20 October 1998 and expiring 19 April 2000
  • On count 3: penal servitude for three years, comprising a minimum term of two years commencing 20 October 1998 and expiring 19 October 2000, and an additional term of one year commencing 20 October 2000 and expiring 19 October 2001
  • Applicant eligible for parole from 19 October 2000

Key Takeaways

  • Previous good character carries diminishing mitigating weight where an offender commits multiple offences over several years. By the time later offences are committed, the court may find that a claim to good character is no longer sustainable.
  • Sentencing statistics comparing an applicant to first-time offenders are of limited value where the applicant's circumstances do not match that cohort. The Court of Criminal Appeal looked to statistics for offenders with prior convictions as the more appropriate reference point.
  • Where counts in an indictment are of low objective seriousness and the offender is effectively being treated as a first offender on those counts, concurrent rather than cumulative structuring may be more appropriate.
  • Under s 5(1) of the Home Detention Act 1986, home detention is available only where the fixed or aggregate term does not exceed 18 months. In cases involving systematic offending across multiple years, such a term may simply not be achievable.
  • The Court confirmed that sentences for systematic receiving of high-value stolen vehicles can properly sit at the upper end of the available range when the offending spans several years and involves deliberate exploitation of stolen goods at significant undervalue.

Legislation and Cases Referenced

Legislation:
- Home Detention Act 1986 (NSW), s 5(1)
- Criminal Procedure Act (NSW), s 21
- Firearms Act (NSW) (referenced in relation to the prohibited weapon count)

Cases: No cases were cited in the judgment.