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Court of Criminal Appeal 23 November 1999

Regina v Griggs

[1999] NSWCCA 381

Also reported as 109 A Crim R 484
Theft & property
CRIMINAL LAW SENTENCING WHEN AND HOW TO BE TAKEN INTO ACCOUNT

Citation: Regina v Griggs [1999] NSWCCA 381
Court: NSW Court of Criminal Appeal
Date: 23 November 1999
Judges: Sperling J, Sully J, Hulme J

Background

The applicant was tried in the District Court on two charges: break, enter and steal, and receiving stolen goods. The trial judge directed the jury to acquit on the first charge. The jury convicted the applicant on the receiving charge, which related to a gold bracelet valued at no more than approximately $3,000.

The applicant was sentenced to two years penal servitude, with a minimum term of 12 months. He appeared without legal representation and filed a handwritten appeal, arguing that the matter should have been dealt with in the Local Court once the more serious charge fell away, and that the sentence was disproportionately harsh.

The Crown, to its credit, acknowledged in written submissions that the sentencing judge had not been directed to the lower maximum penalty applicable to the offence had it been heard summarily in the Local Court, and conceded the appeal had merit.

  • Whether a sentencing court is required to take into account the lower maximum penalty that would have applied had the offence been dealt with summarily in the Local Court.
  • Whether the failure to consider that lower maximum penalty at first instance rendered the sentence manifestly excessive.
  • Whether the sentence imposed was otherwise appropriate given the applicant's criminal history and personal circumstances.

Decision

Sperling J identified the central issue as whether the sentencing judge had taken into account the maximum penalty available under summary proceedings. Under section 33K(2)(c) of the Criminal Procedure Act 1986, the maximum penalty for the offence in the Local Court was 12 months' imprisonment, compared to 10 years on indictment. The sentencing judge had referenced only the 10-year maximum and had not been directed to the lower alternative.

Drawing on the Court of Criminal Appeal's earlier decision in R v Crombie, Sperling J confirmed that the availability of summary proceedings remains a relevant sentencing consideration. It does not cap the sentence at the summary maximum, but it is a circumstance that may call for some mitigation, particularly where it has been entirely overlooked.

The Court found that the sentencing judge's failure to turn his mind to this consideration was an error that warranted intervention, especially given that the sentence imposed (two years, with a 12-month minimum) actually exceeded the maximum that would have been available in the Local Court. This made the sentence manifestly excessive in the circumstances.

Hulme J agreed with the result but noted that, viewed against the applicant's prior dishonesty convictions and the fact that he was on a recognisance at the time of the offence, the original sentence was not inherently unreasonable. His Honour expressed some reservation about reducing the minimum term below 12 months, but ultimately deferred to his colleagues.

Orders Made

  • Extension of time to appeal against sentence granted.
  • Leave to appeal against sentence granted.
  • Appeal allowed; original sentence set aside.
  • Applicant resentenced to 18 months penal servitude, comprising a minimum term of 10 months commencing 9 February 1999 and expiring 8 December 1999, and an additional term of 8 months commencing 9 December 1999.
  • Applicant directed to comply with Probation and Parole Service requirements, including drug rehabilitation and urinalysis.
  • Applicant ordered to pay compensation of $300 to the victim.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the availability of summary proceedings for an offence, and the lower maximum penalty that would have applied in those proceedings, is a relevant consideration in sentencing, even where no formal prosecutorial election was required.
  • Under section 33K(2)(c) of the Criminal Procedure Act 1986, the maximum penalty applicable to the offence in the Local Court was one-tenth of that available in the District Court; a sentencing court that ignores this disparity entirely may fall into error.
  • This principle, drawn from R v Crombie and earlier decisions, does not require a sentencing court to treat the summary maximum as a ceiling, but it does require the court to weigh the circumstance and may warrant some mitigation.
  • Where the sentencing court imposed a term exceeding the summary maximum without having addressed this factor at all, the Court of Criminal Appeal treated the omission as sufficient to justify intervention.
  • No adverse criticism was directed at the sentencing judge, as neither the prosecutor nor defence counsel had drawn the relevant consideration to his attention.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 33K(2)(c)

Cases
- R v Crombie [1999] NSWCCA 297
- R v Dalton-Morgan (NSW CCA, 14 December 1989, unreported)
- R v Jason Clyde Smith (NSW CCA, 11 September 1991, unreported)
- R v Shepherd [1999] NSWCCA 162