Citation: [1999] NSWCCA 435; (1999) 48 NSWLR 327
Court: NSW Court of Criminal Appeal
Date: 16 December 1999
Judge(s): Spigelman CJ, Grove J, Sully J
Background
The Attorney General applied under s 26 of the Criminal Procedure Act for a guideline judgment on sentencing for the offence of breaking, entering and committing a felony under s 112(1) of the Crimes Act 1900 (NSW). This mechanism allows the Attorney General to bring proceedings aimed at producing appellate guidance on sentencing for a particular offence, without necessarily overturning any individual sentence.
Four individual offenders (Ponfield, Scott, Ryan and Johnson) were joined in the proceedings, having each been sentenced in the District Court for offences under s 112(1). Their cases provided the factual backdrop against which the Court examined sentencing patterns and considered what form of guideline, if any, was appropriate.
The Court drew on Judicial Commission Sentencing Information System (SIS) statistics, earlier Court of Criminal Appeal decisions, and comparable English authority to assess whether the offence warranted a guideline judgment and, if so, what it should say.
Legal Issues
- Whether the prevalence and sentencing patterns for s 112(1) offences justified issuing a guideline judgment at all
- Whether any guideline should be expressed in quantitative terms (specifying a starting point or sentencing range), or in qualitative terms (identifying relevant sentencing considerations only)
- What aggravating and mitigating circumstances are relevant when sentencing for s 112(1)
- How guilty pleas should be reflected in sentencing for this offence
Decision
The Court found that the prevalence of the offence was sufficiently established to justify a guideline judgment. Statistical material revealed a notable anomaly: a significant proportion of offenders with prior criminal records received sentences of four years or more, while a comparable proportion with no prior convictions received similar sentences. That disparity, alongside the sheer frequency of the offence, weighed in favour of providing guidance.
However, the Court declined to issue a quantitative guideline, that is, one specifying a starting point or numerical 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 "typical" case. An additional consideration was that the Crown proceeds with the overwhelming majority of these matters in the Local Court, where the maximum is two years, well below any quantitative benchmark the Attorney General had suggested.
Instead, the Court adopted a qualitative guideline: an outline of the circumstances that increase or reduce the seriousness of the offence, drawn in part from the English Court of Appeal's remarks in R v Brewster (1998) 1 CrAppR 220 concerning domestic burglary. The Court noted that certain Brewster guidelines could not be directly imported because the Crimes Act scheme, consistent with R v De Simoni (1980-81) 147 CLR 383, prohibits a sentencing judge from treating as aggravating any circumstances that would warrant conviction for a more serious offence under ss 112(2) or 112(3).
On guilty pleas, the Court observed that SIS data showed anomalies in which offenders who pleaded guilty sometimes received higher median sentences than those who did not. The Court noted those figures may be explicable by case-mix factors, but used the occasion to emphasise that sentencing courts must demonstrably reflect the benefit of a guilty plea, as required by s 493 of the Crimes Act.
Orders Made
No orders were made in this decision.
Key Takeaways
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A guideline judgment for s 112(1) breaking, entering and stealing was warranted by the prevalence of the offence and identifiable sentencing anomalies, even though the existing decisions did not reveal a general pattern of leniency standing alone.
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Quantitative guidelines specifying a starting point or range were held to be unsuitable for this offence, given the wide diversity of circumstances in which it is committed and the fact that most charges are prosecuted in the Local Court.
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Eleven aggravating circumstances were enumerated by the Court, including offending while on bail or parole, professional planning, targeting elderly or vulnerable victims, vandalism, repeat incursions, high sentimental or monetary value of stolen property, likely occupation of premises, actual trauma to the victim, and use or threat of force short of an offensive weapon. Multiple factors compound the seriousness of the offence.
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Drug and alcohol addiction is a relevant circumstance for a sentencing court to consider but is not, of itself, a mitigating factor, following R v Henry [1999] NSWCCA 111.
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Sentencing courts must give discernible effect to the benefit flowing from a guilty plea and must expressly state reasons if they decline to reduce a sentence on that basis, as required by s 493 of the Crimes Act.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 112(1), 112(2), 112(3), 439, 493
- Criminal Procedure Act 1986 (NSW), s 26
- Crimes (Amendment) Act 1966 (NSW)
- Larceny Act 1861 (Imp)
Cases
- R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Jurisic (1998) 45 NSWLR 209
- R v De Simoni (1980-81) 147 CLR 383
- Pearce v The Queen (1998) 72 ALJR 1416
- R v Brewster (1998) 1 CrAppR 220
- R v Hayes (1984) 1 NSWLR 740
- R v Jones, unreported, NSW Court of Criminal Appeal, 30 June 1994