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Court of Criminal Appeal 23 November 2001

R.V. CARLAW

[2001] NSWCCA 479

Theft & property

Citation: R v Carlaw [2001] NSWCCA 479
Court: NSW Court of Criminal Appeal
Date: 23 November 2001
Judge(s): Barr J; Adams J

Background

The appellant was a man approaching 30 years of age with a lengthy criminal history beginning in childhood, primarily involving break-and-enter and theft offences. He pleaded guilty in the Local Court at Broken Hill to stealing in a dwelling house and aggravated breaking, entering and committing an indictable offence, and maintained those pleas in the District Court. Two further offences, malicious damage to property and self-administration of cannabis, were taken into account on a schedule at sentencing.

The offences occurred over two consecutive nights in October 2000. On the first night, the appellant entered an occupied motel room through a propped-open door and stole money from handbags before replacing them. On the second night, he and a companion entered an unlocked private residence and similarly took money from bags without disturbing the property.

Coleman DCJ QC in the District Court imposed a total effective sentence of five years and two months, with a non-parole period of three years and nine months. The appellant sought leave to appeal against those sentences on several grounds, including that the effective sentence was excessive, that no allowance had been made for sixteen days of pre-sentence custody, and that the sentencing judge had failed to give meaningful effect to his own finding that an extended parole period was warranted to support rehabilitation.

  • Whether the effective head sentence of five years and two months fell outside the proper range of sentencing discretion, having regard to Judicial Commission statistics for comparable offences.
  • Whether the sentencing judge erred by failing to allow for sixteen days of pre-sentence custody.
  • Whether the sentencing judge failed to give practical effect to his stated intention of extending the parole period relative to the non-parole period, in order to promote the appellant's rehabilitation through supervised release.

Decision

On the first ground, Barr J accepted that the effective sentence of five years and two months was too high. Judicial Commission statistics for 138 comparable aggravated break-and-enter cases in the higher courts showed that only 21 per cent of head sentences exceeded five years, with the most common range being three to four years. While the Court applied the appropriate caution to statistical arguments, it found the statistical base significant enough to support the conclusion that the sentence exceeded the proper range.

On the pre-sentence custody point, Barr J inferred that the sentencing judge had overlooked the sixteen days because there was no mention of it and no backdating of the sentence. However, this ground alone would not have disturbed the sentence, because the partial overlap of the cumulative sentence with the pre-existing Local Court sentence (which exceeded sixteen days) represented a comparable benefit that had also not been expressly accounted for.

The third ground succeeded. The sentencing judge had found that the appellant warranted a longer-than-standard parole period to support rehabilitation. However, by partially accumulating the sentences, the judge inadvertently produced an effective parole period of around 25 to 27 per cent of the head sentence rather than the extended proportion intended. Barr J found that the accumulation had distorted the balance between non-parole and parole periods, and that the judge had likely overlooked this effect.

The Court also had regard to fresh evidence of the appellant's progress in custody since February 2001. He had taken on work as a cook, completed drug and alcohol awareness courses, and commenced longer-term programs in literacy and food preparation. Barr J accepted that the appellant was probably sincere in his desire to change, particularly given his separation from his children and his active engagement with programs while in custody.

Orders Made

  • Leave to appeal granted; appeal allowed.
  • Sentences imposed in the District Court quashed.
  • On the first count (stealing in a dwelling): imprisonment for two years commencing 12 February 2001, expiring 11 February 2003.
  • On the second count (aggravated breaking, entering and committing an indictable offence), taking into account the two scheduled offences: imprisonment for three years commencing 12 February 2001, expiring 11 February 2004.
  • On each count: non-parole period of one year and six months, expiring 11 August 2002, with the appellant to be released to parole on that date.
  • The extended parole period was attributed to the appellant's need for supervision to support rehabilitation and to the partial accumulation of the sentence upon the Local Court sentence.

Key Takeaways

  • Judicial Commission statistics, while applied with caution, can provide a significant basis for appellate intervention where a sentence falls outside the demonstrated range for comparable offences in the higher courts.
  • Where a sentencing judge expressly finds that an extended parole period is warranted to support rehabilitation, the practical effect of the sentence structure must give effect to that intention. Partial accumulation of sentences can inadvertently undermine it by shrinking the effective parole proportion.
  • Accumulating sentences requires careful adjustment of non-parole and parole periods across each sentence to preserve the intended balance between custodial and supervised release components.
  • Failure to allow for pre-sentence custody will not automatically justify disturbing a sentence on appeal, particularly where the sentencing structure contains an equivalent or greater offsetting benefit.
  • Evidence of genuine engagement with rehabilitation programs during custody, including participation in literacy, drug awareness, and vocational courses, can weigh materially in an applicant's favour on a sentence appeal.

Legislation and Cases Referenced

No specific legislation or cases were cited in the portions of the judgment provided. The offences carry maximum penalties of seven years (stealing in a dwelling) and twenty years (aggravated breaking, entering and committing an indictable offence) under the relevant New South Wales provisions applicable at the time. Reference was also made to Judicial Commission of NSW sentencing statistics for aggravated break-and-enter offences in the higher courts up to December 2000.