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Court of Criminal Appeal 25 October 1999

Regina v Douglas

[1999] NSWCCA 345

Theft & property
SENTENCING

Citation: Regina v Douglas [1999] NSWCCA 345
Court: NSW Court of Criminal Appeal
Date: 25 October 1999
Judge(s): Simpson J; Smart AJ

Background

The appellant was convicted of break, enter and steal following an incident in June 1997 in Leeton, NSW. A group of men broke into a dwelling while the occupants were on holiday, stealing property valued at approximately $32,000 including jewellery, firearms, electronics and tools. The appellant did not enter the premises himself but participated by storing the stolen goods at his home and consenting to their distribution among the co-offenders.

At first instance in the District Court, Downs DCJ imposed a sentence comprising a minimum term of two years penal servitude and an additional term of two years. The appellant sought leave to appeal against the severity of that sentence.

A central issue on appeal was that the sentencing judge had relied on personal knowledge about employment conditions in the Griffith district, which had not been put to the appellant, and had treated the appellant's unemployment and alcohol use as aggravating without properly engaging with the evidence before the court.

  • Whether the sentencing judge erred by relying on personal knowledge about local employment conditions rather than evidence properly before the court, without affording the appellant an opportunity to respond.
  • Whether the judge took irrelevant matters into account in assessing the appellant's personal circumstances, particularly his unemployment and alcohol use.
  • Whether the judge properly assessed and gave credit for the appellant's assistance to the authorities, including his post-plea cooperation with police and the subsequent plea of guilty and records of interview provided by co-offenders.

Decision

The Court of Criminal Appeal found multiple errors in the District Court's approach to sentencing. The sentencing judge had drawn on 25 years of personal experience visiting the Griffith district to conclude that anyone in the region who was not working was either lazy or unwilling to work. This reasoning was not put to the appellant for response, and it formed an improper basis for increasing the weight given to the unemployment factor.

The Court also found error in the judge's treatment of the appellant's alcohol use. The sentencing judge found the appellant was a binge drinker and treated that as an adverse factor, despite the appellant and his partner denying any ongoing problem and evidence suggesting the behaviour had ceased prior to sentencing.

On the question of assistance to authorities, the Court held that the sentencing judge had failed to make the necessary findings about the value of that assistance. The appellant had provided a full account to police following his guilty plea, and three co-offenders subsequently participated in records of interview and entered guilty pleas. The Court considered this assistance, as well as the prospect of further assistance in ongoing proceedings, when resentencing.

Approaching resentencing afresh, the Court set a starting full term of three years, reflecting the seriousness of the offence. A discount of 33 and one-third per cent was applied for assistance: 22.5 per cent for assistance already provided and the remainder for assistance yet to be given. The Court also found special circumstances existed, given it was the appellant's first custodial sentence and his identified alcohol and drug issues required extended supervision.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed; original sentence quashed.
  • The appellant resentenced to a minimum term of 15 months commencing 10 September 1998 and expiring 9 December 1999, with an additional term of 9 months commencing 10 December 1999.
  • The appellant to be released on 9 December 1999 on conditions to be set by the Parole Authorities.

Key Takeaways

  • A sentencing judge commits a procedural error when relying on personal knowledge about matters such as local employment conditions to draw adverse inferences against an offender, without first putting that material to the offender for response.
  • Irrelevant matters taken into account by the sentencing court, or relevant matters assessed on an improper basis, can vitiate a sentence and justify intervention by an appellate court.
  • Where a judge fails to make the necessary findings about the nature and value of an offender's assistance to authorities, that omission constitutes error warranting resentencing.
  • The Court of Criminal Appeal, when resentencing, may take into account developments since the original sentence was imposed, including post-sentence behaviour in custody and the progress of proceedings against co-offenders.
  • A discount of 33 and one-third per cent for assistance to authorities was applied in this case, apportioned between assistance already provided and anticipated future assistance, demonstrating the Court's approach of quantifying and allocating the discount with specificity.

Legislation and Cases Referenced

No legislation or cases were cited in the metadata or in the portions of the judgment provided.