Citation: Regina v Baglee [1999] NSWCCA 223
Court: NSW Court of Criminal Appeal
Date: 4 August 1999
Judge(s): Levine J; Smart AJ
Background
The appellant, Anthony Steven Baglee, had been sentenced in the District Court on one count of break, enter and steal to a minimum term of two years six months and an additional term of eighteen months. He was sentenced concurrently on three further break, enter and steal counts and seven counts of receiving, each attracting fixed terms of twelve months. The principal offence had been committed while the appellant was on bail.
The offending involved breaking into residential properties while occupants were absent, stealing goods, and receiving stolen property found in his vehicle during a police interception. In one instance, a home was ransacked and a flat's front door kicked in. The appellant's brother was involved as a co-offender, with the appellant having acted as a lookout.
The sentencing judge also took account of a range of related offending including obtaining a benefit by deception, furnishing false particulars to a pawnbroker, goods in custody, serious driving offences, and drug possession. The appellant sought leave to appeal against the severity of the principal sentence.
Legal Issues
- Whether the minimum term of two years six months on the principal break, enter and steal count was manifestly excessive
- Whether the sentencing judge failed to properly apply the parity principle, given the appellant's brother received a lesser sentence
- Whether the sentencing judge placed undue weight on the appellant's criminal record
- Whether sufficient weight was given to special circumstances, including the appellant's rehabilitation efforts and E2 custodial classification
- Whether the appellant received proper credit for his pre-sentence time in custody
Decision
The Court rejected the parity argument. The appellant's brother had been dealt with by a magistrate on only two counts of break, enter and steal, making the sentencing circumstances materially different. The sentencing judge had correctly addressed this distinction, and the Court found no error in that reasoning.
The Court found the appellant's criminal record, spanning from 1989 with approximately twenty-four entries, disentitled him to leniency. His record included dishonesty, driving, and drug offences, and he had been imprisoned on multiple prior occasions. The Court also found the sentencing judge had given adequate weight to special circumstances, with the eighteen-month additional term being appropriate.
On the question of the E2 custodial classification and the harsher prison conditions that would result, the Court acknowledged that custodial conditions are a relevant consideration at sentencing. However, the Court noted that the appellant's own conduct, specifically an escape, had produced that classification.
The only ground on which the appeal succeeded was the failure to give the appellant full credit for his pre-sentence custody. The appellant had spent twenty-five days in custody between arrest and bail, and had been continuously in custody from re-arrest on 23 August 1998. The correct commencement date for the sentence had not been put to the sentencing judge, resulting in an error the Court corrected by adjusting the sentence dates accordingly.
Orders Made
- Leave to appeal granted
- Appeal allowed in part on the pre-sentence custody point only
- Minimum term of two years six months recalculated to commence 29 July 1998 and expire 28 January 2001
- Additional term of eighteen months to commence 29 January 2001 and expire 28 July 2002
- Appeal otherwise dismissed on all substantive grounds
Key Takeaways
- The Court of Criminal Appeal confirmed that a parity argument loses much of its force where a co-offender was sentenced in a different court, on fewer charges, and in materially different circumstances.
- A sentencing court's obligation to consider custodial conditions arising from a prisoner's classification does not translate into a reduction in sentence where the classification results from the prisoner's own conduct.
- Sentencing courts are required to correctly calculate and credit all pre-sentence custody; where that calculation was not drawn to the sentencing judge's attention, the Court of Criminal Appeal corrected the dates on appeal rather than treating the error as a reason to alter the substantive sentence.
- In dismissing the severity ground, the Court characterised the sentences as lenient when viewed against the full extent of the appellant's criminality across multiple offences and a lengthy prior record.
- Where a sentencing judge has expressly considered totality, subjective features, and special circumstances, an appellate court will not intervene on severity grounds unless the sentence falls outside the permissible range.
Legislation and Cases Referenced
Legislation: None cited.
Cases: None cited.