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213
Court of Criminal Appeal 16 December 1999

IN THE MATTER OF THE ATTORNEY GENERAL'S APPLICATION (NO 1) UNDER s26 OF THE CRIMINAL APPEAL ACT; R v PONFIELD; R v SCOTT; R v RYAN; R v JOHNSON

[1999] NSWCCA 435

Also reported as (1999) 48 NSWLR 327
Theft & property
CRIMINAL LAW PARTICULAR OFFENCES PROPERTY OFFENCES CRIMINAL LAW SENTENCING SENTENCING GUIDELINES

Citation: [1999] NSWCCA 435
Court: NSW Court of Criminal Appeal
Date: 16 December 1999
Judge(s): Spigelman CJ, Grove J, Sully J (unanimous)

Background

The Director of Public Prosecutions sought a guideline judgment concerning sentences imposed for offences under s 112(1) of the Crimes Act 1900 (NSW), specifically where the felony committed was stealing. The Attorney General separately applied under the Criminal Procedure Act 1986 for such a judgment. Four individual cases were heard concurrently as vehicles for the application: a Crown appeal asserting inadequacy of sentence (Ponfield) and three offender appeals against severity of sentence (Scott, Ryan, Johnson).

The court had before it statistical material from the Bureau of Crime Statistics and Research and the Judicial Commission's Sentencing Information System, as well as a schedule of relevant appellate decisions spanning 1990 to 1999. The material addressed the prevalence of the offence, sentencing patterns, and the profile of typical offenders.

A central contextual feature was the jurisdictional split: since amendments to the Criminal Procedure Act in September 1995, the Local Court had jurisdiction over s 112(1) offences where stolen property was valued below $15,000. By 1998, Local Courts were finalising 88.4% of all such matters, with only 192 cases reaching the District Court.

Legal Issues

  • Whether the circumstances justified the issuance of a sentencing guideline judgment for s 112(1) offences
  • What type of guideline was appropriate: quantitative (specifying a starting point or range) or qualitative (identifying relevant sentencing considerations)
  • What aggravating and mitigating factors should be identified in any guideline

Decision

Issue 1: Whether a guideline judgment was appropriate

The Court identified four recognised circumstances that may call for a guideline judgment: prevalence of the offence, inconsistency in sentencing, emergent patterns of undue leniency or severity, and the requirements of general deterrence. The Court found that prevalence was clearly established, with over 80,000 recorded dwelling break-ins in the year to June 1999 alone.

On undue leniency, the Court reviewed Crown appeals since 1990 and found only fourteen, of which four concerned the more serious aggravated form of the offence. That record did not, of itself, demonstrate a general pattern of leniency sufficient to attract a guideline judgment. However, statistical analysis revealed an apparent anomaly: 36% of offenders with no prior criminal record received a full term of four years or more, compared with only 21% of those who had prior convictions for the same type of offence. The Court found this inconsistency, taken together with the extent of prevalence, justified issuing a guideline.

Issue 2: The type of guideline

The Court declined to issue a quantitative guideline specifying a starting point or sentencing range. The primary reason was the enormous diversity of circumstances in which s 112(1) offences are committed, making it impossible to identify a useful "typical" case of the kind identified in R v Henry or a general standard of the kind used in R v Jurisic. The Court also noted that the overwhelming majority of charges were prosecuted in the Local Court, where the maximum available sentence was two years, well below any quantitative range the Crown had proposed for District Court sentencing.

Issue 3: Aggravating and mitigating factors

The Court adopted a qualitative guideline listing eleven factors whose presence enhances the seriousness of the offence and should be reflected in the sentence. Those factors are set out below under Orders Made. On mitigation, the Court confirmed that evidence of genuine remorse and rehabilitative steps are relevant, while drug or alcohol addiction, though a circumstance to be considered, is not of itself mitigating. The Court also noted statistical evidence suggesting that guilty pleas were not consistently reducing sentences as the legislation required, and directed attention to the obligation under s 493 of the Crimes Act to give discernible weight to a timely guilty plea.

Orders Made

The Court issued a guideline judgment identifying the following aggravating factors for offences under s 112(1), each of which enhances seriousness and should be reflected in sentence (with cumulative effect where more than one applies):

  • The offence was committed while the offender was at conditional liberty on bail or parole
  • The offence was the result of professional planning, organisation and execution
  • The offender has a prior record, particularly for like offences
  • The offence was committed at premises of the elderly, the sick or the disabled
  • The offence was accompanied by vandalism or other significant damage to property
  • There was a multiplicity of offences (whether charged or taken into account), with regard to the criminality involved in each
  • The offence was committed in a series of repeat incursions into the same premises
  • The value of the stolen property to the victim, whether monetary or sentimental
  • The offence was committed at a time when it was likely the premises would be occupied, particularly at night (absent specific knowledge by the offender, which constitutes a separately defined aggravated offence)
  • Actual trauma was suffered by the victim (other than corporeal violence, actual bodily harm or deprivation of liberty, which are separately defined aggravated circumstances)
  • Force was used or threatened (other than by means of an offensive weapon or instrument, which is a separately defined aggravated circumstance)

The four individual appeals were dealt with in the context of the guideline hearing; no separate variation of individual sentences is recorded in the provided judgment text.

Key Takeaways

  • A qualitative guideline identifying sentencing considerations, without prescribing a starting point or range, is the appropriate form of guideline where the offence can be committed in circumstances of almost infinite variety and no typical case can be identified.
  • Prevalence of an offence is sufficient to attract consideration of a guideline judgment, even without proof of a sustained pattern of undue leniency, provided other indicators such as sentencing inconsistency are also present.
  • The Court of Criminal Appeal held that the maximum penalty under s 112(1) is a less reliable sentencing indicator than usual, because the provision applies to all felonies and not merely to stealing, meaning the 14-year maximum carries limited guidance where the underlying felony is not among the more serious ones.
  • Under the Crimes Act legislative scheme, a sentencing court cannot treat as aggravating any circumstance that would have warranted conviction for the more serious offences under s 112(2) or s 112(3), following R v De Simoni (1981) 147 CLR 383.
  • Statistical evidence before the Court suggested that guilty pleas were not consistently attracting a sentencing reduction as required by s 493 of the Crimes Act, and the guideline directed sentencing courts to give discernible recognition to that benefit.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated