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Court of Criminal Appeal 24 July 2001

R v Denney

[2001] NSWCCA 281

Theft & property

Citation: R v Denney [2001] NSWCCA 281
Court: New South Wales Court of Criminal Appeal
Date: 24 July 2001
Judge(s): Studdert J; McClellan J

Background

The applicant, a 40-year-old man with an extensive criminal history spanning from his juvenile years, pleaded guilty in the Local Court to three principal offences: two counts of break, enter and steal and one count of receiving stolen goods, all committed in early 2000 in the Gosford area. Three additional matters were taken into account on a schedule when sentencing for the first count, including larceny and two goods-in-custody offences.

Judge McGuire sentenced the applicant in the District Court at Gosford in October 2000. The sentences were: four years and eight months with a non-parole period of three years and six months for the first break, enter and steal (incorporating the scheduled matters); a fixed term of three years for the second break, enter and steal; and a fixed term of two years for the receiving offence. All three sentences were ordered to be served concurrently, commencing from the date of arrest on 2 April 2000.

The applicant sought leave to appeal to the Court of Criminal Appeal, arguing that the sentencing judge had made a number of legal errors and that the sentences were manifestly excessive.

  • Whether the sentencing judge gave adequate weight to the applicant's early guilty pleas
  • Whether the sentences were manifestly excessive, particularly in light of those early pleas
  • Whether the judge failed to follow the correct sentencing methodology required by Pearce v The Queen (1998) 194 CLR 610, specifically the requirement to fix an appropriate sentence for each offence before considering accumulation or concurrence
  • Whether the judge erred by declining to find "special circumstances" that would have justified a longer parole period relative to the non-parole period

Decision

On the Pearce methodology ground, Studdert J found no error. The longer sentence on the first count was explicable by the need to incorporate the three scheduled offences. The Court accepted that the sentencing judge had fixed an appropriate sentence for each offence individually before turning to questions of accumulation and totality, and that directing concurrent service was appropriate in the circumstances.

On the special circumstances ground, the Court found the sentencing judge had expressly turned his mind to the issue and was not shown to have erred in declining to make such a finding.

On the guilty plea ground, the Court acknowledged the applicant had entered early pleas, but found that the sentencing judge's remarks, read as a whole, could not be said to demonstrate a failure to give proper weight to those pleas. The Court also noted that the decision in R v Thomson (2000) 49 NSWLR 383 was not intended to reduce the general level of sentences; it was expressly stated in that case that trial judges had not previously been distorting sentences by the way they treated guilty pleas.

On manifest excess, Studdert J concluded that the applicant's criminal record, which included six prior convictions for break, enter and steal, seventeen stealing offences, an armed robbery conviction, and repeated recent terms of imprisonment, warranted condign punishment by way of retribution, deterrence, and protection of the community, applying Veen v The Queen (No. 2) (1987-88) 164 CLR 465. Even if the sentencing judge's remarks disclosed some error in expression regarding the guilty plea discount, the resulting sentences were appropriate and would not be disturbed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is required to fix an appropriate sentence for each individual offence before considering whether sentences should accumulate or run concurrently; however, a longer sentence on one count does not automatically indicate that this methodology was not followed, particularly where scheduled offences were taken into account on that count.
  • Where the final sentence is appropriate in all the circumstances, the Court of Criminal Appeal will not intervene even if the sentencing judge's remarks could be read as reflecting some error in the treatment of a guilty plea discount.
  • The Court of Criminal Appeal confirmed that R v Thomson was not intended to produce any general reduction in sentencing levels; prior courts had been treating guilty pleas appropriately, and Thomson merely articulated an existing approach.
  • An extensive and recent criminal history for offences of the same type is a significant factor justifying higher sentences on the grounds of retribution, general and specific deterrence, and community protection, consistent with Veen v The Queen (No. 2).
  • Declining to find special circumstances warranting a longer parole period relative to the head sentence does not constitute error where the sentencing judge has expressly considered the question.

Legislation and Cases Referenced

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Thomson (2000) 49 NSWLR 383
- R v Carter [2001] NSWCCA 245
- R v Parkinson [2001] NSWCCA 244
- Veen v The Queen (No. 2) (1987-88) 164 CLR 465

Legislation: No specific legislation was identified in the provided text.