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Court of Criminal Appeal 12 July 2000

Regina v Lyons

[2000] NSWCCA 337

Theft & property

Citation: Regina v Lyons [2000] NSWCCA 337
Court: NSW Court of Criminal Appeal
Date: 12 July 2000
Judge(s): James J, Bell J

Background

The applicant, a 38-year-old man with a lengthy criminal history and a longstanding heroin addiction, pleaded guilty in the Sydney District Court to one count of break, enter and steal under section 112(1) of the Crimes Act 1900. He had broken into a domestic home in Naremburn, forcing open a rear door and stealing approximately $5,500 worth of property including a laptop computer, VCR, compact discs, and jewellery. All property was subsequently recovered and returned to the owner.

At the time of the offence, the applicant was on parole. He had been at liberty for approximately nine months, the longest such period in roughly twenty years. On the morning of the offence, he was refused admission to a drug detoxification programme at a clinic where he had been on the waiting list, and he committed the offence shortly afterwards.

Judge Armitage QC in the District Court sentenced the applicant to a minimum term of two years imprisonment commencing 16 August 1999, with an additional term of eight months. The applicant sought leave to appeal, contending the sentence was manifestly excessive and that special circumstances warranted a departure from the statutory ratio between minimum and additional terms.

  • Whether the sentence of two years and eight months (total) was manifestly excessive for a break, enter and steal offence under section 112(1) of the Crimes Act 1900
  • Whether the sentencing judge erred in failing to find that "special circumstances" existed under section 5(2) of the Sentencing Act 1989, which would have justified a departure from the standard proportion between minimum and additional terms

Decision

On the question of special circumstances, the Court found no error in the sentencing judge's approach. Although the sentencing judge had carefully considered both the psychologist's report and the pre-sentence report from the Probation and Parole Service, he was not persuaded that special circumstances were established. Bell J noted that the reports were expressly engaged with in the reasons for sentence, and his Honour had specifically acknowledged the applicant's relative progress during his last period on parole. The conclusion that no special circumstances existed was open on those facts.

On the question of manifest excess, the Court rejected the submission. Bell J observed that offences of break, enter and steal are serious offences, and the breaking into a private domestic dwelling with theft of property of considerable value did not lack meaningful circumstances of gravity. The applicant's status as a person on parole at the time of the offence was properly treated as an aggravating factor, notwithstanding that his parole had already been revoked upon his arrest.

The Court also considered statistics compiled by the Judicial Commission on District Court dispositions for section 112(1) offences over the period December 1994 to July 1999. Those statistics did not support the submission that a total sentence of two years and eight months fell outside the proper range of discretion. This was consistent with the sentencing patterns reviewed in Attorney-General's Application No 1.

No error in the exercise of the sentencing discretion was established, and the appeal was accordingly dismissed.

Orders Made

  • Application for leave to appeal allowed
  • Appeal dismissed

Key Takeaways

  • Committing an offence while on parole constitutes a circumstance of aggravation in sentencing, and the fact that parole was revoked as a consequence does not neutralise that aggravating weight.
  • A sentencing judge's refusal to find "special circumstances" under section 5(2) of the Sentencing Act 1989 will not be disturbed on appeal where the judge demonstrably engaged with the relevant material and reached a conclusion open on the evidence.
  • Judicial Commission statistics on sentencing patterns are a recognised tool for assessing whether a particular sentence falls within the proper range of discretion.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a break, enter and steal into a private domestic dwelling is a serious offence, and the absence of formally charged aggravating circumstances does not render an otherwise proportionate sentence excessive.
  • No error was established simply because mitigating factors such as rehabilitation efforts, drug dependency, and co-operation with police were raised, where the sentencing judge had plainly taken those matters into account.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1), (2), (3)
- Sentencing Act 1989 (NSW), s 5(2)
- Criminal Procedure Act 1986 (NSW)

Cases
- Dalton-Morgan (unreported, NSWCCA, 14 December 1998)
- Smith (unreported, NSWCCA, 11 September 1999)
- Attorney-General's Application (No 1); R v Ponfield & Ors [1999] NSWCCA 435
- R v Crombie [1999] NSWCCA 297