Citation: [1999] NSWCCA 298
Court: NSW Court of Criminal Appeal
Date: 15 September 1999
Judge(s): Wood CJ at CL; Simpson J
Background
The appellant was a 21-year-old who, together with a co-offender, carried out a systematic series of break, enter and steal offences targeting domestic and commercial premises. The stolen goods, valued at approximately $59,000 in total (of which $17,500 was recovered), were sold on to known receivers. The offending was planned and sustained.
The appellant was sentenced in the District Court by Ducker DCJ on four counts of break, enter and steal on the indictment, with a further 15 offences of the same nature taken into account under a Form 1 (a procedural device allowing additional offences to be considered at sentencing without separate convictions). He also faced counts of receiving, possession of property stolen interstate, goods in custody, and cannabis possession.
The primary sentence imposed was four years' penal servitude (comprising a minimum term of two years and three months, and an additional term of one year and nine months), with concurrent fixed terms on the remaining counts. The appellant, who appeared unrepresented, sought leave to appeal on the grounds that the sentence was excessive.
Legal Issues
- Whether the appeal raised any question of general principle warranting full consideration
- Whether the sentencing judge gave insufficient weight to the appellant's mitigating circumstances, including his youth, prior record, cooperation with police, rehabilitation efforts, and the effect of his imprisonment on his young child
- Whether the sentence imposed was manifestly excessive given those matters
Decision
The Court granted leave to appeal but unanimously dismissed the appeal. It determined that the case raised no question of general principle, and proceeded to deliver its reasons in short form under section 21A of the Criminal Appeal Act 1912.
The Court found that the sentencing judge had given appropriate weight to each of the mitigating factors raised by the appellant. In particular, the Court noted that the appellant's "prior good record" was not as strong as he suggested: he had previously appeared in the Children's Court for dishonesty offences, including one count of break, enter and steal, as well as drug charges.
Regarding the impact of imprisonment on the appellant's two-year-old daughter, the Court confirmed that this consideration is generally not a sentencing factor unless exceptional circumstances are present. No such circumstances were found here.
The Court characterised the appellant's overall level of criminality as very high, pointing to the number of offences committed in a short period, the planning involved, and the significant value of the property stolen. On that basis, the sentence was not shown to be excessive.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that the impact of an offender's incarceration on a dependant child is not ordinarily a mitigating factor at sentencing; it becomes relevant only where exceptional circumstances exist.
- A purported "prior good record" will be assessed critically; prior appearances in the Children's Court for similar offences may substantially undercut that claim.
- In dismissing the appeal, the Court emphasised that the volume of offences, the degree of planning, and the total value of property involved are all relevant to assessing the seriousness of a course of stealing conduct.
- No error was established in the sentencing judge's weighing of mitigating factors, including youth, police cooperation, and rehabilitation efforts, where the record supported that each had been considered.
- Under section 21A of the Criminal Appeal Act 1912, where an appeal raises no question of general principle, the Court of Criminal Appeal may deliver its reasons in short form.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 21A (short-form reasons where no question of general principle arises)
- Criminal Procedure Act 1986 (NSW), s 21 (Form 1 offences taken into account on sentencing)
Cases cited: No cases were cited in the judgment.