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Court of Criminal Appeal 2 July 1999

Regina v DUNSTALL

[1999] NSWCCA 271

Fraud & dishonestyTheft & property

Citation: Regina v Dunstall [1999] NSWCCA 271
Court: NSW Court of Criminal Appeal
Date: 2 July 1999
Judge(s): Newman J, Bell J

Background

The applicant pleaded guilty in the Albury District Court to disposing of stolen property (motor vehicles with a retail value of approximately $37,000 to $39,000), an offence carrying a maximum penalty of ten years penal servitude. The sentencing judge also took into account five additional matters, including stealing and presenting a stolen cheque and dishonestly obtaining money, and dealt concurrently with an appeal from a magistrate and a breach of recognisance.

The sentencing judge imposed a total sentence of four years, structured as a minimum term of three years and an additional term of one year. The applicant sought leave to appeal that sentence on two grounds: that the sentencing judge failed to apply a discount for assistance provided to authorities, and that special circumstances existed warranting a departure from the statutory proportion between minimum and additional terms.

  • Whether the sentencing judge erred by failing to apply a discount under s 442B of the Sentencing Act for the applicant's assistance to authorities, where that assistance had already been taken into account in an earlier, factually linked matter before a magistrate
  • Whether special circumstances existed under s 5(2) of the Sentencing Act that warranted altering the statutory ratio between the minimum and additional terms of the sentence

Decision

On the question of assistance, the Crown argued the discount had already been exhausted when it was applied to the related goods-in-custody matter heard by the magistrate. The Court of Criminal Appeal rejected that argument. Relying on the principle stated by Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220, the Court confirmed that a sentencing judge retains a discretion about which charges receive a discount for assistance, but that discretion must be exercised in light of the factual connections between charges.

Because the goods-in-custody charge and the principal charge of disposing of stolen property were factually linked, Newman J held the sentencing court should have applied a discount to the principal charge as well. The failure to do so constituted an error warranting intervention.

On special circumstances, the Court accepted that the applicant, then aged thirty, was facing a substantial term of imprisonment for the first time in his life and suffered from a personality disorder. Newman J held those features called for an extended additional term to support rehabilitation, justifying a departure from the statutory proportion.

The Court found the original four-year total sentence was not in itself excessive, absent these two errors. Accounting for both the discount and special circumstances, it reduced the head sentence to three years, restructured as equal minimum and additional terms of 18 months each.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Sentence imposed below quashed; in substitution, a minimum term of 18 months commencing 20 August 1998 and expiring 19 February 2000, and an additional term of 18 months commencing 20 February 2000 and expiring 19 August 2001
  • The concurrent sentences for the two other matters dealt with below were undisturbed

Key Takeaways

  • Where an offender's assistance to authorities relates factually to a principal charge on indictment, a sentencing court should consider applying the s 442B discount to that principal charge, even if the assistance was also taken into account in an earlier, related matter.
  • The Court of Criminal Appeal confirmed, applying Gallagher (1991) 23 NSWLR 220, that the allocation of a sentencing discount for assistance across multiple charges is a matter of judicial discretion to be exercised according to the facts and circumstances of each case.
  • A sentencing judge's silence on special circumstances does not automatically constitute error, but the combination of a first substantial custodial sentence and a diagnosed personality disorder was sufficient to establish special circumstances in this case.
  • The reduction in the head sentence flowed from the accumulated effect of both errors (failure to discount for assistance and failure to address special circumstances), not from any finding that the original four-year total was inherently excessive.
  • Under s 5(2) of the Sentencing Act, special circumstances can justify restructuring a sentence so that the additional term equals or exceeds the minimum term, to allow adequate time for supervision and rehabilitation upon release.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 188 (disposing of stolen property)
- Sentencing Act (NSW), s 442B (discount for assistance to authorities)
- Sentencing Act (NSW), s 5(2) (special circumstances and the minimum/additional term proportion)

Cases:
- R v Gallagher (1991) 23 NSWLR 220