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Court of Criminal Appeal 29 November 2001

REGINA v. DUNCOMBE

[2001] NSWCCA 483

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE CROWN APPEAL PRINCIPLES APPLICABLE BREAK ENTER AND STEAL OFFENCES ASSAULT POLICE

Citation: Regina v Duncombe [2001] NSWCCA 483
Court: NSW Court of Criminal Appeal
Date: 29 November 2001
Judges: Sheller JA, Dowd J, Greg James J

Background

The respondent, a 33-year-old man with an extensive criminal history, pleaded guilty in the District Court at Albury to one count of break, enter and steal and one count of assaulting a police officer in the execution of his duty. The offences arose from a late-night expedition in which he drove co-offenders to the town of Rand, where they broke into and stole from three premises. When a police officer (who owned the general store and resided on the premises) confronted the group, the respondent drove his van into the officer's car to force a way out.

The respondent then fled but shortly surrendered to police. A large portion of the stolen items was recovered. He told police he had participated to raise money to find his missing de facto wife. The sentencing judge noted several significant subjective factors in his favour, including an extremely disadvantaged upbringing involving violence and sexual abuse, an Aboriginal background engaging the principles from Fernando, and recent heavy involvement with illegal substances.

The District Court sentenced the respondent to six months and two weeks for the assault, followed by three years for the break, enter and steal, with a non-parole period of only nine months. The Director of Public Prosecutions appealed those sentences as inadequate.

  • Whether the sentences imposed by the District Court were so inadequate as to warrant intervention on a Crown appeal
  • Whether the trial judge correctly applied the guideline judgment in Ponfield to break, enter and steal offences
  • Whether the non-parole period set by the trial judge was disproportionately short relative to the head sentence
  • How the court should balance the respondent's significant subjective circumstances against the objective seriousness of the offending

Decision

The Court of Criminal Appeal upheld the Crown appeal, finding that both the head sentences and the non-parole period were inadequate. Greg James J, with whom Sheller JA and Dowd J agreed, identified the respondent's criminal history as serious. The respondent had spent almost all of his adult life in custody, had numerous prior convictions for dishonesty and break, enter and steal offences, and had been on parole when he committed the offences in question. These factors substantially elevated the objective gravity of the conduct.

The Court found the trial judge had given undue weight to the respondent's subjective circumstances in a way that produced sentences below any acceptable range. The guideline judgment in Ponfield required careful attention to the systematic nature of break, enter and steal offending and the respondent's record placed his conduct firmly at the serious end of the spectrum. The assault on the police officer, which involved using a van as a weapon, also warranted more substantial recognition.

At the same time, the Court acknowledged the principles of restraint applicable to Crown appeals and accepted that genuinely compelling subjective material had been placed before the Court on appeal, including a psychologist's report (from Ms Johnson) suggesting real prospects of rehabilitation. The Court structured the re-sentence to reflect those prospects by making the assault sentence a fixed term and commencing a three-year non-parole period with the beginning of the second sentence, producing a non-parole period of 75 percent of the second sentence but a smaller proportion of the total sentence.

Orders Made

  • The appeal was upheld and the District Court sentences were quashed.
  • On the assault police count: fixed term of 12 months imprisonment, commencing 2 November 2000, expiring 1 November 2001.
  • On the break, enter and steal count (taking into account Form 1 matters): 5 years imprisonment, commencing 2 November 2001, expiring 1 November 2006, creating a total sentence of 6 years.
  • Non-parole period of 3 years set on the second sentence, commencing 2 November 2001, with first possible release date of 2 November 2004.
  • Parole to be subject to supervision by the Probation and Parole Service.
  • Ms Johnson's psychological report to be forwarded to the Department of Corrective Services.

Key Takeaways

  • A nine-month non-parole period attached to a three-year sentence for break, enter and steal was found to be disproportionately short where the offender had a lengthy history of similar offending and was on parole at the time of the offences.
  • The Court of Criminal Appeal confirmed that the Ponfield guideline judgment applies meaningfully to offenders with entrenched patterns of break, enter and steal conduct, and sentencing courts must engage with it carefully.
  • Significant subjective circumstances, including an Aboriginal background and the Fernando principles, do not operate to reduce sentences below a range that reflects objective seriousness and total culpability, particularly where prior leniency has not reduced reoffending.
  • On Crown appeals, the Court applied the established principle of restraint, imposing a sentence somewhat below what it might otherwise have ordered to avoid wholly negating the expectations raised by the original sentencing process.
  • Sentence structure can be used to reflect rehabilitation prospects: by making the first sentence a fixed term and commencing the non-parole period with the second, the Court produced an overall non-parole proportion lower than the ratio applicable to the break, enter and steal head sentence alone.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Ponfield (1999) 48 NSWLR 327 (guideline judgment for break, enter and steal)
- R v Fernando (1992) 76 A Crim R 58 (principles for sentencing Aboriginal offenders)
- Wong & Leung [2001] HCA 64
- Osenkowski (1982) 30 SASR 212
- Everett (1994) 181 CLR 295
- Dinsdale (2000) 74 ALJR 1538
- Thomson & Houlten (2000) 49 NSWLR 383
- Lowe [1984] 12 A Crim R 408
- Readman (1990) 47 A Crim R 181
- Morgan (1993) 70 A Crim R 368
- Allpass (1994) 72 A Crim R 561
- Kalache (2000) 111 A Crim R 152
- Warfield (1994) 34 NSWLR 200
- Moffitt (1990) 20 NSWLR 114
- Pearce (1998) 103 A Crim R 372
- R v Harris [2001] NSWCCA 322
- Pont [2000] NSWCCA 419
- Landsell (CCA, unreported, 23 May 1996)