Citation: Appleby v R [1999] NSWCCA 157
Court: NSW Court of Criminal Appeal
Date: 11 June 1999
Judge(s): Grove J; Carruthers AJ
Background
The applicant was one of four offenders who drove a vehicle through the front doors of a Chatswood business in what is commonly called a "ram raid," stealing laptop computers in the process. A security guard alerted police, and the offenders were intercepted shortly after. The applicant gave a false name upon arrest, though his true identity was confirmed by fingerprint check.
The applicant pleaded guilty to breaking, entering and stealing in the District Court at Parramatta. Judge Morgan DCJ sentenced him to two years penal servitude, divided into a minimum term of 12 months and an additional term of 12 months. The maximum penalty for the offence is 14 years penal servitude.
The applicant, who had 25 entries on his criminal record involving many multiple offences, appeared unrepresented before the Court of Criminal Appeal and sought leave to appeal against the sentence.
Legal Issues
- Whether the sentencing judge erred in approach or assessment when imposing the two-year sentence
- Whether the applicant suffered a justifiable grievance arising from the disparity between his sentence and that of a co-offender dealt with in the Hornsby Local Court
- Whether the applicant was denied procedural fairness through an alleged refusal of an adjournment and the absence of a psychological report
- Whether the applicant was entitled to have sentences served concurrently with other terms he was already serving
Decision
The Court of Criminal Appeal found no error in the sentencing judge's approach or assessment. Grove J observed that the sentence was not merely within range but fell toward the lenient end of it, a characterisation the Crown Prosecutor had also advanced in written submissions. In those circumstances, the threshold for appellate intervention, which requires demonstration of error in the court below, was plainly not met.
The Court rejected the disparity argument regarding the co-offender, David Zdravokovic, who had been sentenced to 18 months penal servitude (14 months minimum, 4 months additional) at Hornsby Local Court. The sentencing judge had expressly acknowledged that difference in her remarks, and the Court found the circumstances of the two offenders were not identical. The total sentence received by the applicant was longer, but his minimum term was shorter.
On the procedural complaints, the Court found the record did not support the claim that an adjournment had been refused, as no such application appeared in the District Court record. Although a psychological report existed, it had been prepared in advance of other proceedings and was available before the sentencing hearing. A parole officer also gave oral evidence, which the Court noted may have been more beneficial to the applicant than a written report.
The Court also rejected the submission that the applicant was entitled to have the sentence served concurrently with other terms. Grove J confirmed that there is no entitlement for any prisoner to serve sentences concurrently: each sentencing occasion requires the exercise of judicial discretion according to the merits, applicable appellate guidelines, and relevant statutory requirements.
Orders Made
- Leave to appeal granted
- Appeal dismissed
- Psychological report returned to the applicant
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal affirmed that appellate intervention in sentencing requires a demonstrated error in the court below; a sentence that falls within the sound exercise of judicial discretion, even toward the lenient end, provides no basis for appeal.
- A prisoner has no entitlement to concurrent service of sentences. The decision to accumulate or impose concurrent sentences rests on judicial discretion exercised at each sentencing occasion, guided by appellate principles and statute.
- Sentencing disparity between co-offenders does not automatically ground a successful appeal, particularly where the sentencing judge has expressly acknowledged the difference and the offenders' circumstances are not identical.
- Where evidence supporting a mitigating factor, such as a psychological report, was available before the sentencing hearing but not tendered, a court on appeal is unlikely to regard its absence as a procedural unfairness warranting intervention.
- A guilty plea carries some weight in mitigation, but that weight is diminished where an offender was apprehended virtually at the scene and the prospects of contesting the charge were remote.
Legislation and Cases Referenced
Legislation:
- No specific legislation cited in the judgment text (the offence of breaking, entering and stealing carries a prescribed maximum of 14 years penal servitude under the applicable Crimes Act provisions)
Cases:
- No cases expressly cited in the judgment text