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Court of Criminal Appeal 20 June 2002

R v Crowe

[2002] NSWCCA 245

Theft & property
CRIMINAL LAW SENTENCING BREAK, ENTER & STEAL BREAK IN OF A CITY JEWELLERY STORE LARGE AMOUNT TAKEN.

Citation: R v Crowe [2002] NSWCCA 245
Court: New South Wales Court of Criminal Appeal
Date: 20 June 2002
Judge(s): Dunford J; Adams J

Background

The applicant pleaded guilty in the District Court to aggravated break, enter and steal under s 112(2) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. The offence involved a coordinated raid on a luxury jewellery store in Sydney's CBD, carried out with two co-offenders. The group smashed through the front glass door with a sledgehammer, threatened staff, ransacked the store, and attempted to force open a rear office demanding access to the safe. Stolen jewellery valued at approximately $750,000 was taken.

The applicant was identified two weeks later when his sister was found in possession of a $60,000 necklace from the store. He declined to be interviewed by police and had prior convictions including a recent conviction for being an accessory after the fact to robbery, for which he had been on parole at the time of this offence.

Dodd DCJ in the District Court sentenced the applicant to six years imprisonment with a non-parole period of four years. The applicant sought leave to appeal to the Court of Criminal Appeal on the ground that the sentence was manifestly excessive.

  • Whether the sentence of six years imprisonment with a four-year non-parole period was manifestly excessive in all the circumstances
  • Whether the sentencing judge gave adequate weight to mitigating factors, including the plea of guilty, the applicant's personal background, and any evidence of remorse or contrition
  • Whether the sentencing judge correctly assessed the objective seriousness of the offence

Decision

The Court of Criminal Appeal found the sentence was not manifestly excessive and dismissed the appeal, though leave to appeal was granted. Both Dunford J and Adams J treated the offence as falling squarely within the serious range for this category of crime. The Court emphasised the degree of planning and coordination involved: the offenders had disguised themselves, brought appropriate tools, arrived just after closing time, and arranged a stolen getaway vehicle.

Dunford J noted the offence was materially more serious than a typical residential break-in. It involved a deliberate attack on a commercial premises chosen for the value of its stock, with significant preparatory steps. The theft was substantial and the damage extensive. One employee gave evidence of being terrified and fearing for her life.

Adams J added that the deliberate infliction of fear on store employees, including the terrifying attempt to force the office door with a sledgehammer, independently placed the offence well within the serious range. This element indicated that fear was likely used intentionally to prevent staff from interfering with the crime.

On the question of remorse, both judges found the objective evidence was insufficient to support a finding of genuine contrition. The applicant did not give evidence at sentencing. While his father gave evidence that the applicant had expressed regret, the Court concluded those words did not warrant a finding of meaningful remorse beyond mere expression. The 25% discount applied by the sentencing judge for the utilitarian value of the plea was described as the maximum appropriate in the circumstances, and the Court found no error in how that discount was applied.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A coordinated commercial break-in involving disguise, purpose-built tools, a stolen getaway vehicle, and deliberate terrorising of staff will be assessed as falling well within the serious range for aggravated break, enter and steal offences.
  • Under s 112(2) of the Crimes Act 1900, the maximum penalty of 20 years imprisonment reflects the gravity the legislature has assigned to aggravated entries, and a sentence of six years with a four-year non-parole period was held to be within the proper exercise of sentencing discretion on these facts.
  • The Court of Criminal Appeal confirmed that a guilty plea in the face of a strong Crown case may properly be characterised as a calculated forensic decision, and that a 25% utilitarian discount remains appropriate even where subjective remorse is not established.
  • No error was established in the sentencing judge's treatment of remorse where the applicant did not give evidence and the only evidence of regret consisted of words reported by a family member without corroborating objective circumstances.
  • Upholding the sentence, the Court noted that an offender's commission of a serious offence while on parole for a related type of crime is a significant factor weighing against a finding of good prospects of rehabilitation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2) (aggravated break, enter and steal)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- Re Attorney-General's Application (No 1); R v Pomfield & Ors [1999] NSWCCA 43, 48 NSWLR 327
- R v Qutami [2001] NSWCCA 353
- R v Simpson [2001] NSWCCA 534
- R v Hayes [2001] NSWCCA 410