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Court of Criminal Appeal 10 March 1999

Regina v Cowan

[1999] NSWCCA 49

Theft & propertyPublic order & justice offences
SEVERITY OF SENTENCE COMMUNITY SERVICE BREAK, ENTER AND STEAL.

Citation: Regina v Cowan [1999] NSWCCA 49
Court: NSW Court of Criminal Appeal
Date: 10 March 1999
Judge(s): Simpson J; Smart AJ

Background

The appellant pleaded guilty to break, enter and steal arising from an incident in June 1997. He played a lesser role than his co-offenders, cooperated with police, and entered his plea at the first opportunity. His initial sentence of eight months periodic detention was replaced on appeal by a community service order of 300 hours, imposed by Garling DCJ, who gave the appellant a pointed warning about the consequences of future non-compliance.

The appellant completed approximately 224 of the required 300 hours (around 74 per cent) but attended poorly and required repeated follow-up from the Probation and Parole Service. A complaint was made under the Community Services Orders Act 1979 for failure to comply with the order without reasonable cause.

On 9 December 1998, Twigg DCJ dealt with the breach and sentenced the appellant to a minimum term of six months and an additional term of six months full-time custody. The appellant sought leave to appeal the severity of that sentence.

  • Whether Twigg DCJ gave sufficient weight to the original sentence length and to the substantial portion of community service already completed when sentencing for the breach
  • Whether the resulting sentence of 12 months (with minimum and additional terms) was excessive in all the circumstances
  • Whether the commencement date of a separate sentence of nine months periodic detention needed to be adjusted following any variation to the breach sentence

Decision

Smart AJ accepted that Twigg DCJ was reasonably entitled to impose full-time custody for the breach. The appellant's explanations for non-attendance were found to lack substance, his claims about reduced drug and alcohol use were rejected, and his history included appearances before the Children's Court and a robbery matter. Specific and general deterrence properly carried significant weight.

However, the Court found that Twigg DCJ erred by not attaching sufficient weight to two factors that section 26 of the Community Services Orders Act 1979 expressly required to be taken into account: the terms of the original sentence and anything done under the community service order. The original sentence had been eight months periodic detention, which equated to approximately 70 days of full-time custody. That period had already been served, and the appellant had also completed about 74 per cent of his community service hours.

The Court held that these factors, taken together, made the 12-month sentence excessive. In the Court's view, the appropriate sentence was a fixed term of imprisonment running from 9 December 1998 to 9 March 1999, a period the appellant had by then already served.

Because the variation affected the timing of the appellant's other sentence (nine months periodic detention confirmed by Twigg DCJ in a separate matter), the Court also brought forward the commencement date of that sentence using its power under section 24A of the Criminal Procedure Act.

Orders Made

  • Leave to appeal granted
  • Appeal against the 12-month sentence allowed; sentence imposed by Twigg DCJ quashed
  • In lieu thereof, a fixed term of imprisonment imposed commencing 9 December 1998 and expiring 9 March 1999
  • Appellant to be released immediately
  • Pursuant to section 24A of the Criminal Procedure Act, the commencement date of the separate nine-month periodic detention sentence varied from 9 June 1999 to take immediate effect
  • Appellant directed to report to Unanderra Periodic Detention Centre on or before 4:00pm on Friday, 19 March 1999

Key Takeaways

  • Under section 26 of the Community Services Orders Act 1979, a sentencing court dealing with a breach of a community service order must take into account both the making of the original order and anything done under it, including hours of service actually completed.
  • The Court of Criminal Appeal confirmed that completing a substantial proportion of a community service order (here, approximately 74 per cent) must be given significant weight when a court imposes a further sentence for breach.
  • A sentencing court must also account for the length of the original sentence when determining the appropriate penalty for a breach; failing to do so can render the resulting sentence excessive.
  • In dismissing the Crown's submission that the 12-month sentence was appropriate, the Court of Criminal Appeal found that the original eight months periodic detention, already treated as served, effectively capped the full-time custody component that could fairly be imposed.
  • Where a sentence is varied on appeal and a separately imposed sentence is affected in its timing, the Court of Criminal Appeal may exercise its power under section 24A of the Criminal Procedure Act to adjust the commencement date of that other sentence.

Legislation and Cases Referenced

Legislation:
- Community Services Orders Act 1979 (NSW), ss 23, 25(4), 26
- Criminal Procedure Act (NSW), s 24A

Cases:
- Regina v Morris, unreported, Court of Criminal Appeal, 10 November 1995