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Court of Criminal Appeal 31 July 2000

Regina v Zanze

[2000] NSWCCA 308

Theft & property
CRIMINAL LAW SENTENCE APPEAL NO QUESTION OF PRINCIPLE.

Citation: Regina v Zanze [2000] NSWCCA 308
Court: New South Wales Court of Criminal Appeal
Date: 31 July 2000
Judge(s): Newman J; Sperling J

Background

The applicant, a 33-year-old man with approximately a decade of criminal history including prior property offences, pleaded guilty in the District Court to four charges of receiving stolen goods. He also asked the court to take into account five further matters of goods in custody. The stolen items included a watch, a mobile phone, power tools, cameras, and a radio cassette player, all taken from properties that had been broken into.

The offences were committed between October 1998 and February 1999, during the additional term (the parole period) of an earlier three-year sentence for which the applicant had been released on parole in August 1998. Parole was subsequently revoked because of the new offences, and the applicant returned to custody in March 1999.

Job DCJ sentenced the applicant in the District Court to two years and eight months penal servitude, with a minimum term of two years commencing 29 March 1999. The applicant sought leave to appeal that sentence on three grounds.

  • Whether the sentencing judge erred by failing to take into account that the charges could have been dealt with summarily in the Local Court, where the maximum penalty on any single count would have been 12 months.
  • Whether the sentence of two years and eight months penal servitude was manifestly excessive.
  • Whether the sentencing judge erred by failing to find "special circumstances" (a finding that can alter the ratio between the minimum and additional terms of a sentence).

Decision

On the first ground, the Court of Criminal Appeal found that the possibility of summary disposal in the Local Court could not feasibly have affected the outcome. The prosecution had elected to proceed in the District Court, and the Court considered that election to be appropriate in the circumstances.

On the second ground, the Court rejected the submission that the sentence was manifestly excessive. The Court noted in particular that part of the sentence was to be served concurrently with the balance of the additional term under the earlier sentence, a factor that supported the overall proportionality of the penalty.

On the third ground, the applicant argued that the sentencing judge's silence on special circumstances indicated he had failed to consider the issue at all. Sperling J declined to draw that inference. The Court noted that the sentencing judge was a very experienced District Court judge, and the suggestion that he had simply overlooked the topic was not credible. The Court also found that, in any event, a failure to find special circumstances would not have been an error on the facts of this case.

The Court concluded that this was plainly a case in which the appeal should not succeed and dismissed it accordingly.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal declined to infer that a sentencing judge had overlooked the question of special circumstances merely because the written reasons did not expressly address it, particularly where the judge was experienced.
  • No error was established in the sentence imposed, given the applicant's significant criminal history, the commission of offences while on parole, and the concurrent operation of portions of the sentence with an earlier additional term.
  • The fact that charges could theoretically have been dealt with summarily does not, of itself, constrain the sentencing discretion in the District Court once the prosecution has properly elected to proceed there.
  • In dismissing the appeal, the Court reinforced that the relevance of the summary jurisdiction ceiling is limited where the prosecutorial election to proceed on indictment is appropriate.
  • No question of principle arose in this matter; it was resolved entirely on its particular facts and circumstances.

Legislation and Cases Referenced

No specific legislation or cases were cited in the judgment or metadata. The applicable sentencing framework at the time involved minimum and additional terms under New South Wales law, including the concept of "special circumstances" that could vary the standard ratio between those terms.