Citation: Regina v Ponfield [1999] NSWCCA 422
Court: New South Wales Court of Criminal Appeal
Date: 16 December 1999
Judge(s): Spigelman CJ, Grove J, Sully J
Background
The respondent, an offender with an extensive criminal history, pleaded guilty in the Wollongong District Court to three counts of breaking, entering and stealing. His record included eight prior convictions for breaking and entering and stealing, three for breaking and entering with intent, and one for attempt, as well as a conviction for robbery in company.
The first two counts arose from a June 1997 incident in which the respondent was found by police with jewellery and other property concealed in his car, admitting he had burgled nearby houses. He was bailed to appear on those charges but failed to do so. Approximately a year later, police observed him carrying a pillowcase containing property he had just stolen from another premises, and he was arrested effectively red-handed.
At the final sentencing hearing in the District Court, the respondent presented evidence of genuine rehabilitation efforts, including participation in a methadone program and negative drug tests for illicit substances over several months. The sentencing judge deferred passing sentence on counts one and two (releasing the respondent on a recognizance to be of good behaviour for 18 months, with Probation Service supervision) and imposed 500 hours of community service on count three. The Crown appealed those sentences as manifestly inadequate.
Legal Issues
- Whether the sentences imposed by the District Court were manifestly inadequate given the objective seriousness of the offences and the respondent's criminal history.
- Whether a lengthy adjournment granted to allow the respondent to demonstrate rehabilitation amounted to an implied indication that a non-custodial outcome would follow.
- How the respondent's genuine rehabilitation efforts should be weighed against the objective circumstances of the offences when re-sentencing.
Decision
The Court of Criminal Appeal unanimously allowed the Crown appeal. Grove J (with whom Spigelman CJ and Sully J agreed) held that wholly non-custodial sentences so completely failed to reflect the objective seriousness of the offences that they were manifestly inadequate. The respondent's significant criminal history, his failure to appear on the first two charges, and the circumstances in which he was arrested on the third count all pointed firmly toward a custodial sentence.
The Court rejected the argument that the lengthy adjournment had amounted to a foreshadowed indication of a non-custodial outcome, as in Griffiths v The Queen. The adjournment had been granted at the respondent's own request to allow him to demonstrate his rehabilitation efforts in mitigation, not in response to any indication from the bench that a non-custodial sentence was in prospect.
The Court acknowledged the respondent's commendable steps toward rehabilitation and recognised that both his own interests and those of the community favoured his continued progress. However, those mitigating factors, though taken into account, could not overcome the objective circumstances demanding a custodial term. The Court structured the sentence to include an extended additional term so that the Probation and Parole Service could continue supervising the respondent's rehabilitation during parole, treating that need as special circumstances under the then-applicable sentencing legislation.
Orders Made
- Crown appeal allowed.
- District Court orders quashed.
- On each count, the respondent sentenced to penal servitude for a total of two years, served concurrently, comprising:
- A minimum term of six months commencing 16 December 1999, expiring 15 June 2000.
- An additional term of 18 months commencing 16 June 2000.
- Respondent to be released to parole on 15 June 2000, subject to supervision by the Probation and Parole Service.
- Condition of parole: the respondent to report to the Probation and Parole Service within 48 hours of release from custody.
- Form 1 matters taken into account in respect of the sentence imposed on count one.
Key Takeaways
- Wholly non-custodial sentences for a repeat offender with an extensive history of breaking, entering and stealing, who had failed to appear on bail and was arrested effectively red-handed, were held to be manifestly inadequate and warranted correction on Crown appeal.
- The Court of Criminal Appeal confirmed that granting a lengthy adjournment to allow an offender to demonstrate rehabilitation does not, by itself, constitute a judicial indication that a non-custodial outcome is in prospect. The Griffiths v The Queen principle requires a clear indication from the bench, not merely Crown acquiescence to an adjournment application.
- Evidence of genuine rehabilitation efforts, including drug program participation and satisfactory community service, is a relevant mitigating factor but cannot displace the objective seriousness of offences or an offender's significant criminal history when determining whether a custodial sentence is required.
- Where continuity of rehabilitation supervision provides a sound basis for a longer parole period, that need may constitute special circumstances justifying a departure from the standard ratio between minimum and additional terms.
- In re-sentencing following a successful Crown appeal, the Court of Criminal Appeal structured the sentence to preserve the rehabilitative conditions previously imposed, carrying them forward as parole conditions during an extended additional term.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(1) (breaking, entering and stealing)
- Criminal Procedure Act 1986 (NSW), s 29A(2)
- Sentencing Act 1989 (NSW), s 5(2) (special circumstances)
Cases:
- Griffiths v The Queen (1977) 137 CLR 293