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Court of Criminal Appeal 8 May 2002

Regina v Juricic

[2002] NSWCCA 170

Theft & property
SENTENCING SEVERITY APPEAL NO QUESTION OF PRINCIPLE INVOLVED.

Citation: Regina v Juricic [2002] NSWCCA 170
Court: NSW Court of Criminal Appeal
Date: 8 May 2002
Judge(s): Greg James J; Carruthers AJ

Background

The applicant was sentenced in the District Court at Bega on 5 June 2001 after pleading guilty to four offences of break, enter and steal, contrary to s 112(1) of the Crimes Act 1900. A further offence of possessing a prohibited drug was taken into account on a Form 1 (a procedural mechanism by which related offences are acknowledged at sentencing without a separate penalty being imposed). The offences included breaking into a hotel safe, entering the home of an elderly woman who had died in hospital, and two commercial break-ins on the same evening, all committed in the Eden and surrounding area of NSW.

The sentencing judge, Judge Shillington QC, imposed three years' imprisonment with a non-parole period of two years and three months on each count, with all sentences to run concurrently from 26 March 2001. The applicant appeared unrepresented in the Court of Criminal Appeal, relying on grounds of appeal and written submissions that he acknowledged were prepared with the assistance of a fellow inmate.

  • Whether the sentencing judge erred in taking into account the applicant's prior Victorian criminal record when he had no prior convictions recorded in NSW
  • Whether the applicant's legal representation at the District Court level was deficient, given the applicant's claim that his solicitor failed to follow his instructions that he was not guilty of the Barnes break-in
  • Whether a confrontation with a correctional officer in the court cells on the day of sentencing impaired the applicant's ability to present his case

Decision

On the first ground, the Court found no error. The sentencing judge had, in fact, proceeded on the basis of finalising the matter with reference only to the applicant's NSW prior record, being the bond imposed at the Eden Local Court. The Victorian record was not the operative prior record used against the applicant, removing the factual basis for this ground.

On the second ground, the Court rejected the contention that the applicant's legal representation was deficient. The applicant had in fact pleaded guilty at the District Court and given evidence disputing only the precise factual basis of his involvement in the Barnes offence. The sentencing judge accepted the applicant's account of that offence could not be proven untrue, but correctly noted that under the doctrine of common purpose the applicant remained legally responsible regardless of how the facts fell.

The third ground, concerning the alleged confrontation in the cells, was also dismissed. A review of the sentencing proceedings disclosed no difficulty in the presentation of the applicant's case. The Court was not persuaded that the incident had compromised the integrity of the sentencing process.

More broadly, the Court observed that the applicant had in fact been dealt with extremely leniently. Ordering all four sentences to run concurrently was a significant concession given that three of the offences were committed while the applicant was on both bail and a conditional bond. The Court noted that cumulative or partly cumulative sentences could well have been justified under the principles in Pearce v The Queen (1998) 194 CLR 610.

Orders Made

  • Application for leave to appeal against sentence granted
  • Appeal dismissed
  • Direction that the applicant be released at the expiration of two years and three months, subject to supervision of the Parole Service, consistent with s 5 of the Crimes (Sentencing Procedure) Act 1999

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that ordering concurrent rather than cumulative sentences for multiple discrete offences constitutes a form of leniency that weighs against a severity appeal succeeding.
  • A sentencing court may take a prior interstate criminal record into account; however, in this case, no error arose because the sentencing judge relied only on the applicant's NSW record when finalising the sentence.
  • Under the doctrine of common purpose, an offender may be held legally responsible for an offence committed by a co-offender where that offender participated in a joint criminal enterprise, even where the co-offender physically entered the premises.
  • No error was established merely because an applicant's instructions to plead not guilty were not followed where the applicant ultimately entered and maintained a guilty plea and the sentencing proceedings were conducted without apparent procedural irregularity.
  • The Court confirmed the applicable release and supervision conditions by direction under s 5 of the Crimes (Sentencing Procedure) Act 1999, clarifying the terms on which the applicant would be released at the expiry of the non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1) (break, enter and steal; maximum 14 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5; s 9

Cases:
- Pearce v The Queen (1998) 194 CLR 610 (principles governing cumulative and concurrent sentencing for multiple offences)