Citation: R v Sutton [2000] NSWCCA 145
Court: NSW Court of Criminal Appeal
Date: 12 April 2000
Judge(s): Hulme J; Dowd J
Background
The appellant had an extensive criminal history spanning nearly 30 years, predominantly for dishonesty offences. In January 1998 he was arrested and pleaded guilty at the earliest opportunity to three charges of breaking, entering and stealing, one charge of possessing housebreaking implements, and one charge of entering land with intent to commit an offence. Karpin DCJ sentenced him to a minimum term of 15 months and an additional term of 33 months, reflecting what appeared to be a genuine attempt by the appellant to address his alcohol and heroin addiction.
Before that sentencing, police had searched the appellant's home and found property worth approximately $15,000. That property was later identified as proceeds from 13 separate thefts from dwelling houses committed between September 1997 and January 1998. In July 1998, some six months after the first sentencing, the appellant was charged with 13 counts of receiving and one count of obtaining a benefit by deception in connection with that property.
On 16 April 1999, Ducker DCJ sentenced the appellant on those later charges. His Honour accumulated the new sentences on the existing sentence, increasing the total from four years to six years and three months, and the minimum term from 15 months to three years and three months. The appellant sought leave to appeal, contending the sentences were manifestly excessive.
Legal Issues
- Whether the delay in charging the appellant with the second group of offences was taken into account, and whether that delay unfairly disadvantaged him
- Whether the sentences adequately reflected the sentencing judge's stated intention to preserve an opportunity for early parole consistent with the earlier sentencing
- Whether the increase in the minimum term was disproportionate to the overall increase in the full sentence
- Whether Ducker DCJ erred in accumulating the sentences, or failed to give adequate reasons for doing so
- Whether the principle of totality was adequately applied
- Whether there was a proper basis for imposing a longer sentence on count 14 compared with counts 2 to 13
- Whether the sentencing approach breached the principles in Pearce v R (1998) 72 ALJR 1416
Decision
Hulme J found that the approximately six-month delay between the appellant's arrest and the second set of charges was not of sufficient significance to warrant a reduction in sentence. The appellant had refused to speak with investigating police while in prison, and had been aware from the search of his home that further charges were likely. Had he genuinely wished to clear his record at the time of the first sentencing, he could have disclosed his involvement in the later offences himself.
On the question of totality, Hulme J accepted that Ducker DCJ had explicitly endeavoured to sentence as though all matters had been dealt with together. His Honour had also acknowledged the earlier sentencing judge's intention to give the appellant an early opportunity on parole, but had concluded that the later charges were not a trivial addition to the existing criminality. The resulting sentence structure was consistent with those expressed considerations.
Regarding count 14, Hulme J noted that its value of $3,350 was substantially higher than most of the other receiving charges, and that it arose from a separate theft. However, even if the sentence on that count were found to be excessive and substituted, Hulme J considered the substitute sentence would still need to be accumulated to a substantial degree on the other sentences, given the totality of the appellant's criminality and the sentencing judge's expressed desire to allow for a meaningful additional term for rehabilitation purposes.
Dowd J concurred in the result, adding that Pearce obliges courts to fix penalties in respect of each offence reflecting totality, but does not require separate standalone penalties that abandon the established practice of loading a heavier sentence onto one count to reflect the overall criminality. Both judges agreed no error was established.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a relatively short delay between arrest and the laying of further charges does not automatically reduce the sentences imposed on those later charges, particularly where the accused had the means and opportunity to facilitate earlier resolution.
- Where an accused refuses to cooperate with police investigating related offences, that conduct is relevant to the weight given to any complaint about delay in prosecution.
- Under the totality principle, a sentencing judge who accumulates a later sentence on an existing one is not obliged simply to make all additional sentences concurrent; a heavier sentence on a single count may properly reflect the overall criminality of related offences.
- Dowd J clarified that Pearce v R requires the fixing of a penalty for each offence reflecting totality, but does not disturb the established practice of imposing a heavier sentence on one count to reflect the criminality across multiple offences.
- No error was established merely because the minimum term increased by a greater proportion than the overall sentence, where the sentencing judge had expressly considered totality and the aims of rehabilitation.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5, 6(3)
Cases:
- Pearce v R (1998) 72 ALJR 1416
- Mill v R (1988) 166 CLR 59