Citation: Regina v Kate Bolter [2002] NSWCCA 417
Court: NSW Court of Criminal Appeal
Date: 8 October 2002
Judge(s): Sully J, Howie J
Background
The appellant pleaded guilty in the Gosford Local Court to two charges of break, enter and steal, contrary to s 112(1) of the Crimes Act, and was committed to the District Court for sentencing. Both offences were committed within a short period in late October and early November 2001, targeting the homes of elderly victims.
In the first incident, the appellant entered an occupied home and stole small amounts of cash and two sentimental diamond rings, which she later sold. In the second incident, a homeowner returned to find the appellant standing at her dressing table; the appellant was later found in possession of a child's watch taken from the premises.
Her Honour English DCJ sentenced the appellant to a fixed term of three years for the first offence, to be served concurrently with a four-year sentence (non-parole period of three years) for the second offence. The appellant sought leave to appeal against those sentences.
Legal Issues
- Whether the sentences were disproportionate to the objective seriousness of the offences, particularly given the low commercial value of property stolen
- Whether the sentencing judge breached the principles in De Simoni v The Queen and Ryan v The Queen by punishing the appellant for more serious offences than those charged, through references to "circumstances of aggravation"
- Whether the sentencing judge gave excessive weight to the appellant's prior criminal record in a manner that produced a penalty disproportionate to the gravity of the instant offences
Decision
The Court dismissed all three grounds of appeal and refused to disturb the sentences imposed at first instance.
On the first ground, the Court rejected the argument that the sentences were excessive simply because the stolen property had low monetary value. Sully J emphasised that the gravity of break, enter and steal is not measured in dollars and cents alone. The violation of a home, and the loss of security and peace of mind suffered particularly by elderly victims, constitutes serious social harm regardless of the commercial value of what was taken.
On the second ground, the Court found that the sentencing judge's references to "aggravation" did not constitute a breach of the De Simoni principle. The references were properly understood as referring to the circumstances in which the offences were committed, namely that the appellant was on parole for one offence and on bail for the first offence when she committed the second. Those matters were legitimate sentencing considerations and did not amount to punishing the appellant for more serious, uncharged offences.
On the third ground, the Court confirmed that an offender's criminal history is a legitimate sentencing factor, drawing on the High Court's statement in Veen v The Queen [No 2]. A prior record can demonstrate a continuing attitude of disobedience of the law and is relevant to moral culpability, deterrence, and protection of the community, provided it does not produce a penalty disproportionate to the gravity of the instant offence. On the facts, the Court was satisfied that the sentences fell within the proper exercise of the sentencing discretion.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The objective seriousness of break, enter and steal offences is not determined solely by the commercial value of stolen property; harm to victims' sense of security and the sanctity of their homes are legitimate considerations.
- A sentencing judge's reference to "circumstances of aggravation" does not breach the De Simoni principle where the aggravating circumstances relate to the manner in which the charged offences were committed, not to uncharged conduct of a more serious character.
- Under the principles confirmed in Veen v The Queen [No 2], antecedent criminal history may be taken into account in sentencing to demonstrate a continuing attitude of disobedience of the law, but it cannot justify a penalty disproportionate to the gravity of the instant offence.
- In dismissing the appeal, the Court of Criminal Appeal reaffirmed that an appeal court's role is not to substitute its own view of the appropriate sentence, but to determine whether the primary judge's exercise of the sentencing discretion fell outside a proper and reasonable range.
- Being on parole at the time of offending, and on bail for one offence when committing a second, are properly treated as aggravating factors in sentencing.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 112(1) (break, enter and steal; maximum 14 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- De Simoni v The Queen (1981) 147 CLR 383
- Ryan v The Queen (2001) 75 ALJR 815
- Veen v The Queen [No 2] (1988) 164 CLR 477
- R v Thomson and Houlton (cited in proceedings; full citation not stated in judgment)