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Court of Criminal Appeal 4 April 2001

Regina v Elliott

[2001] NSWCCA 131

Theft & property

Citation: Regina v Elliott [2001] NSWCCA 131
Court: New South Wales Court of Criminal Appeal
Date: 4 April 2001
Judge(s): O'Keefe J; Smart AJ

Background

The appellant was convicted of nine offences of breaking, entering and stealing committed between November 1998 and July 1999, targeting private homes in the Campbelltown area. The total value of property stolen was approximately $31,815, of which over $28,000 remained unrecovered. He was also convicted of taking and driving a conveyance without consent.

At sentence, the District Court imposed concurrent minimum terms of five years imprisonment and additional terms of three years on each of the nine break, enter and steal counts, dating from 6 July 1999. The appellant had a significant prior record including fourteen offences of break, enter and steal, and had been at conditional liberty on a suspended sentence at the time of the offences. He also had a long-standing heroin addiction.

The appellant sought leave to appeal against the severity of the sentences, raising two principal grounds: the sentencing judge had not given credit for his early guilty plea, and the sentences imposed on individual counts were outside the range established by comparable cases.

  • Whether the sentencing judge erred by fixing an overall sentence to reflect the total criminality, rather than fixing an appropriate sentence for each individual offence and then considering cumulation, concurrence, and totality, as required by Pearce v The Queen
  • Whether the sentences imposed on each break, enter and steal count were within the range of sentences for comparable offending
  • Whether adequate credit was given for the appellant's early plea of guilty

Decision

The Crown conceded that the sentencing judge had applied the former approach of fixing one sentence to cover the whole of the criminality, without first fixing an appropriate sentence for each individual offence. This was inconsistent with the principle established in Pearce v The Queen (1998) 194 CLR 610, which requires a sentencing judge to fix an appropriate sentence for each offence before turning to questions of cumulation, concurrence, and totality.

Despite the Crown's argument that the overall sentence remained appropriate even if its structure was flawed, the Court found the sentences were out of range on the individual counts. Judicial Commission statistics for the period December 1994 to March 2000 showed that the minimum and full terms imposed placed the sentences in approximately the top four per cent of sentences for break, enter and steal offences involving multiple counts, Form 1 matters, and a guilty plea. The facts did not warrant sentences of that order.

The Court also found that no credit appeared to have been given for the early guilty plea, which had considerable utilitarian value given the number of witnesses and the length of trial that was avoided. The Court restructured the sentences to reflect credit for the plea, the principle of totality, and the need for an extended period of supervised release to support rehabilitation. Three aggravating factors remained properly relevant: the appellant was on conditional liberty, his prior record included approximately fourteen like offences, and there were multiple counts.

The Court constructed individual sentences that produced a total head sentence of six years and six months, with a non-parole period of four years. The longer non-parole period on the final count was designed to allow an extended period of parole supervision given the appellant's rehabilitation needs following a cumulative sentence structure.

Orders Made

  • Time extended to apply for leave to appeal
  • Leave to appeal granted
  • Appeals on the break, enter and steal counts allowed; sentences quashed
  • In lieu of the original sentences on the break, enter and steal counts:
  • Count 1: Fixed term of 2 years 6 months from 6 July 1999, ending 5 January 2002
  • Counts 2 to 8 (except the last count): 3 years from 6 July 1999, with a non-parole period of 2 years ending 5 July 2001 (concurrent)
  • Count 9: 4 years cumulative on Count 1, commencing 6 January 2002, with a non-parole period of 1 year 6 months ending 5 July 2003
  • Appeal against sentence for taking and driving a conveyance without consent dismissed, the sentence being served concurrently with Count 1

Key Takeaways

  • A sentencing judge must fix an appropriate sentence for each individual offence before addressing cumulation, concurrence, and totality. Imposing a single overall sentence to reflect total criminality without that step is a legal error under Pearce v The Queen.
  • Where the Crown concedes a structural sentencing error, the Court of Criminal Appeal will nonetheless examine whether the sentences on individual counts were within range, and will not simply preserve an overall result if individual sentences are excessive.
  • Utilitarian value of an early guilty plea must be reflected in the sentence. Where no credit appears to have been given, that constitutes an identifiable error warranting intervention.
  • Judicial Commission sentencing statistics may be used to demonstrate that an individual sentence is outside the range for comparable offending, particularly where the sentence falls in the top few per cent by length.
  • A longer parole period can be structured through special circumstances findings where an offender's rehabilitation needs, including management of drug dependency, warrant an extended period of supervision upon release.

Legislation and Cases Referenced

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Polden and Mitchell, unreported, NSWCCA, 13 November 1998

Legislation: None cited.