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Court of Criminal Appeal 11 August 2000

R v Sternbeck

[2000] NSWCCA 374

Theft & property
SENTENCE APPEAL BREAK, ENTER AND STEAL LARCENY PRINCIPLE OF TOTALITY PRINCIPLE OF PARITY

Citation: R v Sternbeck [2000] NSWCCA 374
Court: New South Wales Court of Criminal Appeal
Date: 11 August 2000
Judge(s): Dowd J (primary judgment); Bruce James J (agreeing)

Background

The applicant, a 44-year-old man, pleaded guilty to two separate offences: break, enter and steal contrary to s 112 of the Crimes Act 1900 (NSW), and larceny contrary to s 117 of the same Act. The sentencing judge in the District Court also took into account five further offences on a Form One, including drug possession, possession of housebreaking implements, malicious damage, and assaulting a police officer.

The break, enter and steal involved the theft of items worth approximately $580 from residential premises at Bellambi. The larceny was considerably more serious: the applicant and a co-offender hired a large truck, drove to Lismore, cut through a security fence, broke into a Fiat tractor valued at $54,000, and arranged for a private contractor to transport it. A police pursuit followed over roughly 50 kilometres before the applicant fled the vehicle.

The co-offender involved in the larceny had been dealt with separately in the Local Court and received a fixed term of six months. The applicant, sentenced in the District Court, received a total of 38 months minimum term and two years additional term. He appealed on the grounds that the sentences were manifestly excessive and that the disparity with his co-offender's sentence was unjust.

  • Whether the total sentence of 38 months minimum term plus two years additional term was manifestly excessive.
  • Whether the sentence for the larceny count, viewed on its own, was manifestly excessive.
  • Whether the sentencing judge erred in rejecting the principle of parity when compared with the co-offender's six-month sentence imposed in the Local Court.
  • Whether a lower court sentence, though inadequate, could nonetheless anchor parity considerations in a higher court sentencing.

Decision

On the question of manifest excess for the larceny sentence, Dowd J was not persuaded that the 18-month minimum term was in itself outside the permissible range. The larceny was described by the sentencing judge as professionally planned criminal activity falling in the higher range of its kind, and those findings were not challenged on appeal.

On the parity question, the sentencing judge had concluded that the Local Court sentence of six months was so manifestly inadequate that it imposed no constraint on him. The Court of Criminal Appeal took a different view. While Dowd J accepted that the co-offender's sentence was low and inadequate, it was not, in his assessment, entirely outside the permissible sentencing range. That distinction mattered: a sentence that is low but within range still engages parity considerations, even where the co-offenders were sentenced in courts of different jurisdiction.

The Court held that the sentencing judge was obliged to take into account the significantly lower sentence given to the co-offender in the Local Court. An 18-month minimum term, against a co-offender's six months, was found to engender a strong sense of injustice. Accordingly, leave to appeal was granted and the appeal allowed on the parity ground.

In resentencing, the Court did not simply mirror the Local Court sentence for the co-offender. It took into account the applicant's more serious criminal history, the fact that he was on bail at the time of the offending, and the principles of totality as applied across both counts.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed on the larceny count.
  • Conviction on the larceny count confirmed; sentence on that count varied.
  • The minimum term of one year and six months (commencing 19 October 2000) was set aside and replaced with a term of imprisonment of two years and four months, with a non-parole period of ten months commencing 19 October 2000 and concluding 18 August 2001.
  • The sentence on the break, enter and steal count was confirmed and remained unchanged.

Key Takeaways

  • The parity principle is not confined to cases where co-offenders are sentenced in the same court: the Court of Criminal Appeal confirmed that a significant sentencing disparity between co-offenders sentenced in different courts can still give rise to a justifiable sense of grievance warranting appellate intervention.
  • A co-offender's sentence being low or inadequate does not automatically neutralise parity considerations. The critical question is whether that sentence falls entirely outside the permissible sentencing range; if it does not, parity remains relevant.
  • Where the principle of totality applies across multiple counts, the resulting sentences are interconnected and cannot be assessed in complete isolation from one another.
  • Resentencing on parity grounds does not require a court to replicate precisely the co-offender's sentence. Differences in criminal history, bail status, and applicable jurisdiction remain relevant factors that may justify a higher outcome.
  • The Local Court's restricted jurisdictional range is a matter to be taken into account in sentencing, following R v Crombie [1999] NSWCCA 297, but it is not a determinative factor.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112 (break, enter and steal) and 117 (larceny)

Cases
- R v Hayes (1983) 11 A Crim R 187
- Pearce v The Queen (1998) 194 CLR 610
- The Queen v Lowe (1984) 154 CLR 606
- R v Diamond (Unreported, NSWCCA, 18 February 1993, Hunt CJ at CL, Smart and James JJ)
- R v Steele (Unreported, NSWCCA, 17 April 1997, Sheller JA, Grove and Simpson JJ)
- Postiglione v The Queen (1995-1996) 189 CLR 295
- R v Crombie [1999] NSWCCA 297