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Court of Criminal Appeal 4 October 2000

R v McLennan

[2000] NSWCCA 407

Fraud & dishonestyTheft & property

Citation: McLennan v R [2000] NSWCCA 407
Court: New South Wales Court of Criminal Appeal
Date: 4 October 2000
Judge(s): Simpson J; Hidden J

Background

The applicant was convicted by jury of one count of break, enter and steal following an incident in March 1998. She had telephoned a locksmith while impersonating the previous occupant of a Sydney flat, answered security questions about the flat's layout from prior visits, and gained entry. She then stole property valued at over $21,000 from the current occupant. None of the property was recovered, and some items were of sentimental value.

The applicant had also been convicted in the Local Court of 66 separate charges, predominantly offences of dishonesty, including obtaining benefits by deception, making or using false instruments, and stealing. For the break, enter and steal conviction, the District Court sentenced her to two and a half years' imprisonment, comprising a minimum term of one year and an additional term of eighteen months.

The applicant sought leave to appeal against sentence in the Court of Criminal Appeal, appearing unrepresented. She raised nine distinct grounds, contending that the sentencing judge had made various errors in the exercise of the sentencing discretion.

  • Whether the sentencing judge erred in referring to the applicant's age as a factor in sentencing
  • Whether the sentencing judge should have considered a non-custodial sentencing option
  • Whether the sentencing judge impermissibly increased the sentence out of dissatisfaction with the magistrate's approach to the summary offences
  • Whether the sentencing judge took into account irrelevant circumstances or misunderstood the facts of the offence
  • Whether insufficient regard was given to the applicant's prospects of rehabilitation
  • Whether the sentencing judge gave undue weight to general deterrence
  • Whether the sentencing judge penalised the applicant for her plea of not guilty
  • Whether it was permissible to apply the guideline judgment in R v Ponfield (1999), which was published after the offence was committed
  • Whether the sentencing judge failed to give adequate consideration to the impact of the sentence on the applicant's plans, including resuming university studies

Decision

The Court rejected all nine grounds. On the question of age, Simpson J found that the sentencing judge's reference to the applicant's age was simply an explanation that she did not attract the leniency sometimes extended to young offenders due to immaturity. It was not an impermissible aggravating use of age.

On the non-custodial option, the Court found the nature and seriousness of the offending plainly warranted a full-time custodial sentence. The sentencing judge had not erred in declining to pursue a non-custodial alternative. On the suggestion that the sentencing judge was influenced by dissatisfaction with the magistrate's sentencing approach, the Court found no evidence to support this. Similarly, the claims that irrelevant circumstances were considered or that the judge misunderstood the facts were rejected, with the Court finding the sentencing judge's characterisation of the offending as planned and sophisticated was plainly open on the evidence.

Regarding the guideline judgment in R v Ponfield, the Court held that a guideline judgment issued by the Court of Criminal Appeal is properly applied to any sentencing, regardless of whether it postdates the commission of the offence. On the plea of not guilty, the Court confirmed that while a plea of guilty properly attracts recognition at sentence, an offender cannot be further penalised for exercising the right to require the prosecution to prove its case. His Honour's statements in this respect were found to be correct. The applicant's plans to resume university studies, while noted, could not displace the requirements of the criminal law.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's reference to an offender's age is not erroneous where it is used only to explain why the leniency sometimes extended to young or immature offenders does not apply, rather than as an aggravating factor.
  • Guideline judgments issued by the Court of Criminal Appeal apply to sentencing proceedings regardless of whether they were published before or after the relevant offence was committed.
  • An offender is entitled to plead not guilty and require the Crown to prove its case, but a plea of guilty carries its own separate entitlement to recognition at sentence; these two principles operate independently of each other.
  • In dismissing the appeal, the Court confirmed that personal plans formed after the commission of an offence, such as returning to university study, cannot override the proper application of criminal sentencing principles.
  • No error was established in the sentencing judge's characterisation of a carefully planned and executed break, enter and steal as warranting full-time custody, even where the offender had no prior criminal history until relatively late in life.

Legislation and Cases Referenced

Legislation
- Crimes Act 1901 (NSW), s 112(1) (break, enter and steal; maximum penalty of 14 years' imprisonment)

Cases
- R v Pearce (1998) 194 CLR 610
- R v Ponfield (1999) 48 NSWLR 327