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Court of Criminal Appeal 11 October 2000

R v SKORNIA

[2000] NSWCCA 422

Theft & property

Citation: SKORNIA v R [2000] NSWCCA 422
Court: NSW Court of Criminal Appeal
Date: 11 October 2000
Judge(s): Hulme J; Barr J

Background

The appellant pleaded guilty in the District Court to breaking and entering a dwelling house at Cessnock between 7 and 12 August 1999 and stealing property valued at approximately $27,000 from it. Coolahan DCJ sentenced him to imprisonment with a minimum term of two years and an additional term of two years, commencing from his arrest on 18 October 1999. Some $7,000 worth of goods were recovered, including a camera the appellant returned himself, leaving a net loss to the victims of around $20,000.

The appellant sought leave to appeal against sentence, contending it was manifestly excessive. He raised three specific grounds in support of that contention, each directed at aspects of the sentencing judge's reasoning.

  • Whether the sentencing judge was entitled to find that the offence involved a significant degree of planning
  • Whether the sentencing judge gave inappropriate weight to the appellant's prior criminal history
  • Whether the sentencing judge erred in failing to consider the type of custody in which the appellant would be held (specifically, higher-security classification and segregation conditions)
  • Whether, overall, the sentence was manifestly excessive

Decision

Ground 1: Planning. Hulme J rejected the argument that the sentencing judge could not find planning. The appellant had taken two large sports bags to the scene of the break-in. No sports bags appeared in the list of items stolen, so the court was entitled to infer the bags were brought to transport the stolen goods. That inference alone was sufficient to support the finding of some degree of planning.

Ground 2: Criminal history. The court found no error in the sentencing judge's treatment of the appellant's record. Although the offence was his first break, enter and steal charge, he had numerous prior convictions for stealing, larceny, and possessing suspected stolen goods, as well as other offences reflecting a general disregard for community obligations. Hulme J also noted that at the time of the offence the appellant was on bail for multiple charges, a well-established aggravating factor. Citing the High Court's analysis in Regina v Veen (No 2), the court confirmed that antecedent history is legitimately used to assess whether an offence is an isolated aberration or reflects a continuing attitude of disregard for the law.

Ground 3: Custody conditions. The appellant's high-security classification arose from an escape from Cessnock Gaol in 1998. The court agreed with the sentencing judge that this circumstance had no relevance to sentencing: an offender who demonstrates by their own misconduct that heightened security is necessary cannot complain about that outcome. Regarding the segregation that followed a serious assault on the appellant in custody, Hulme J accepted that segregation carries some disadvantages but nothing placed before the court indicated those disadvantages were significant enough to have warranted a reduced sentence.

Manifest excess. Statistical data from the Judicial Commission showed the sentence fell well within the normal range for offences of this kind. The maximum penalty under section 112(1) of the Crimes Act was fourteen years. Hulme J observed that break, enter and steal offences are widespread and that the sentence imposed was not excessive on any view. Leave to appeal was refused.

Orders Made

  • Leave to appeal against sentence is refused.

Key Takeaways

  • Carrying equipment to a break-in, such as bags to transport stolen goods, can support a finding of planning at sentencing even where the offender's own evidence is ambiguous on the point.
  • Under the principles in Regina v Veen (No 2), a prior record of dishonesty offences is legitimately used in sentencing to assess moral culpability and whether the offender displays a continuing attitude of disobedience, particularly where the instant offence is consistent with that pattern.
  • Committing an offence while on bail is a recognised and serious aggravating factor in NSW sentencing.
  • A prisoner's higher-security classification resulting from their own misconduct in custody (including escape) is not a circumstance that mitigates the sentence imposed for a separate offence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the sentencing range for break, enter and steal offences is informed by Judicial Commission statistics and the guidance in Re Attorney-General's Application (No 1); Regina v Ponfield & Ors.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), s 112(1) (break, enter and steal: maximum fourteen years imprisonment)

Cases
- Regina v Veen (No 2) (1988) 164 CLR 465 (High Court: use of antecedent criminal history in sentencing)
- Re Attorney-General's Application (No 1); Regina v Ponfield & Ors (1999) 48 NSWLR 327 (sentencing range for break, enter and steal)