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Court of Criminal Appeal 27 October 1999

REGINA v MINOGUE

[1999] NSWCCA 427

Theft & property

Citation: [1999] NSWCCA 427
Court: NSW Court of Criminal Appeal
Date: 27 October 1999
Judges: Simpson J; Smart AJ

Background

The applicant pleaded guilty in the District Court to two offences: break, enter and steal under s 112(1) of the Crimes Act 1900 (maximum 14 years penal servitude), and taking a conveyance without the owner's consent under s 154A of the same Act (maximum five years). He also asked the court to take into account a drug possession charge on a Form 1 (a procedure under the Criminal Procedure Act 1986 allowing a sentencing court to factor in additional offences without recording a separate conviction).

The break and enter involved the applicant smashing a bicycle shop window and loading stolen bicycles, valued together at $16,400, into a stolen vehicle. He was apprehended by police at the scene. The stolen vehicle had been reported missing nine days earlier, and marijuana was found on him when searched.

Rummery DCJ in the District Court sentenced the applicant to a total of two years eight months penal servitude (minimum term of two years, additional term of eight months) on the first count, with a concurrent fixed term of two years on the second count. The applicant, then 33, had an extensive criminal history dating to age 15, including seven armed robbery charges for which he had served a prior custodial sentence in Victoria.

  • Whether the total sentence and minimum term imposed were manifestly excessive in all the circumstances
  • Whether the sentencing judge properly took into account the applicant's period of relative law-abiding behaviour and employment between earlier offences and the current matter
  • Whether Judicial Commission sentencing statistics supported a finding that the sentence fell outside the appropriate range

Decision

The applicant appeared unrepresented and relied principally on two arguments: that the sentence did not reflect the true nature of the offending (which he characterised as a drunken act), and that it was out of step with comparable sentences shown in Judicial Commission statistics. He submitted that a sentence of around 12 months would have been appropriate.

The Court rejected the argument that the sentencing judge had failed to account for the applicant's period free from imprisonable offences. Simpson J noted that Rummery DCJ had expressly acknowledged that period on two occasions in his remarks, and had arguably treated it more favourably than the objective facts warranted, given that some offences had still been committed during that time (though none resulted in imprisonment).

On the statistical argument, Simpson J found that the figures the applicant himself relied on in fact undermined his case. They showed at least 23 per cent of offenders under s 112(1) received minimum terms of two years or more, and that 40 per cent of recidivist offenders received sentences of equivalent or greater length. Crown statistics, refined to include Form 1 matters, showed an even higher correlation, though the Court noted the wide variety of offences that may appear on a Form 1 and that a single drug possession charge was unlikely to produce a substantial uplift in sentence.

The Court concluded that the sentence imposed by Rummery DCJ fell well within the range properly open to him, and that no other error had been demonstrated. Smart AJ agreed with Simpson J without further elaboration.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence for break, enter and steal fell well within the appropriate range where Judicial Commission statistics showed at least 40 per cent of comparable recidivist offenders received sentences of equivalent or greater length.
  • A sentencing court's acknowledgment of a period of relative law-abiding conduct will be treated as sufficient engagement with that mitigating factor; the Court of Criminal Appeal will not interfere where the remarks on sentence demonstrate the judge expressly turned his mind to it.
  • Under the Form 1 procedure in the Criminal Procedure Act 1986, the weight given to a single minor drug possession offence taken into account is unlikely to produce a major uplift in the sentence for the principal offence.
  • Judicial Commission statistics are a recognised tool in sentence appeals but must be read carefully. Statistics that, on their face, appear to support a manifestly excessive argument may, on closer analysis, demonstrate the opposite.
  • No error of principle was established merely because the applicant characterised the offending as impulsive or alcohol-fuelled, where the sentencing court had access to a pre-sentence report and conducted a full consideration of the objective and subjective circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(1) (break, enter and steal), 154A (taking conveyance without consent)
- Criminal Procedure Act 1986 (NSW), s 21 (Form 1 procedure for taking additional offences into account)

Cases cited: None cited in the judgment.