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Court of Criminal Appeal 6 October 2000

R v Shipley

[2000] NSWCCA 411

Theft & property

Citation: R v Shipley [2000] NSWCCA 411
Court: NSW Court of Criminal Appeal
Date: 6 October 2000
Judge(s): Simpson J; Hidden J

Background

The applicant pleaded guilty in the District Court to a charge of car stealing. The offence involved using a screwdriver to access a parked vehicle, driving it briefly, and abandoning it. The vehicle was found two days later, stripped.

The applicant was 41 years old at the time of the offence and had an extensive criminal history stretching back to age 12. However, his last dishonesty-related offence had been recorded almost 20 years before this matter came before the Court. He had a longstanding alcohol problem, limited literacy, and had recently entered a de facto relationship that appeared to have had a stabilising influence on him.

Judge Mahoney in the District Court sentenced the applicant to a total term of two years' imprisonment, structured as a minimum term of 16 months and an additional term of 8 months. The applicant sought leave to appeal that sentence.

  • Whether the structure of the sentence was flawed, including whether special circumstances under s 5(2) of the Sentencing Act 1989 should have been found.
  • Whether the sentence was manifestly excessive, given that the offence would ordinarily have been dealt with summarily in the Local Court.
  • Whether the sentencing judge formed an erroneous view of the applicant's criminal history, and whether that error affected the sentence.

Decision

On the question of sentence structure, the Court noted that the sentence was initially pronounced correctly but was then altered following an erroneous interjection by the Crown Prosecutor, which inadvertently reduced the minimum term and extended the additional term. On the special circumstances argument, the Court held that a finding of special circumstances had been open on the evidence but was not inevitable. Because it had not been argued before the sentencing judge, and because the applicant had in any event received a benefit through the reduced minimum term, this ground was rejected.

On manifest excess, the Court accepted that the fact an offence ordinarily triable summarily is instead dealt with on indictment is a relevant sentencing consideration, citing R v Crombie [1999] NSWCCA 297. The prosecution did not contest this point.

The Court found that the sentencing judge had formed a significantly erroneous impression of the applicant's criminal history. During the hearing, Judge Mahoney described the applicant as having been "flat out busy stealing everything that wasn't nailed down," based on a quick look at a lengthy record. In fact, the applicant's last dishonesty offence was nearly 20 years earlier. The applicant's legal representative at the time did not correct this misapprehension.

Taken together, these two errors, namely the erroneous factual impression about the criminal history and the inappropriate elevation of the matter to the District Court, persuaded the Court of Criminal Appeal that the sentencing process had miscarried. Leave to appeal was granted, the appeal was upheld, and a reduced sentence was substituted.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld.
  • Sentence of imprisonment for a fixed term of 12 months, commencing 1 October 1999 and expiring 30 September 2000, substituted for the original sentence.

Key Takeaways

  • A sentencing judge's misapprehension of the currency and extent of an offender's criminal history can constitute a material error justifying appellate intervention, even where the record itself supports a general characterisation of offending.
  • Under the Sentencing Act 1989 (since repealed), an additional term was not to exceed one-third of the minimum term unless special circumstances were found; a finding of special circumstances was open but not mandatory on the facts here, and failure to argue it below weighed against raising it on appeal.
  • Where an offence that would ordinarily be dealt with summarily is instead sentenced on indictment, the sentencing court is required to take that circumstance into account as a factor relevant to the appropriate penalty, consistent with R v Crombie [1999] NSWCCA 297.
  • An erroneous intervention by the Crown Prosecutor during sentencing, which inadvertently altered the structure of the sentence to the accused's benefit, did not in itself constitute a ground of appeal, but formed part of the background context the Court considered.
  • Concessions by the prosecution on appeal can carry weight: the Crown's acceptance that the Local Court sentencing context was relevant to the assessment of manifest excess assisted the applicant's case on that ground.

Legislation and Cases Referenced

Legislation
- Sentencing Act 1989 (NSW), s 5(2), s 5(3) (since repealed)

Cases
- R v Crombie [1999] NSWCCA 297