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Court of Criminal Appeal 11 November 2002

Regina v WICKS

[2002] NSWCCA 445

Theft & property
SENTENCE APPEAL APPLICATION NO LESSER SENTENCE APPROPRIATE.

Citation: Regina v Wicks [2002] NSWCCA 445
Court: NSW Court of Criminal Appeal
Date: 11 November 2002
Judge(s): Wood CJ at CL, Dowd J, Bell J

Background

The applicant pleaded guilty in the District Court to one count of break, enter and steal (maximum 14 years) and two counts of taking and driving a conveyance without consent (maximum 5 years each). A further twelve matters were placed on a Form 1 to be taken into account on the principal count, including multiple break and enter offences, possession of car breaking implements, and larceny-related charges. Several of these Form 1 offences were committed while the applicant was on bail.

Blackmore DCJ sentenced the applicant to two concurrent one-year sentences on the conveyance counts, and a cumulative four-year sentence with a two-year non-parole period on the break, enter and steal count. Special circumstances were found, reducing the non-parole period below the standard 75% threshold, on account of the applicant's need for drug rehabilitation and the accumulation of sentences.

The applicant sought leave to appeal on the ground that the sentencing judge gave insufficient weight to the principle in R v Ellis, which requires a significant discount in sentence where an offender discloses an offence that would otherwise have remained undetected. One of the conveyance offences had come to police attention only because the applicant admitted it during a record of interview.

  • Whether the sentencing judge applied the Ellis principle (significant discount for voluntary disclosure of otherwise undetectable offending) when structuring the sentences
  • Whether, in light of the applicant's subjective circumstances and the Ellis principle, a lesser sentence was warranted in law

Decision

Dowd J, with Wood CJ at CL and Bell J agreeing, accepted that the Ellis principle was engaged because one offence was disclosed by the applicant and would not otherwise have come to police attention. However, the Court found that the structure of the sentences already gave effect to that principle. By making the two conveyance sentences concurrent rather than cumulative, the sentencing judge imposed no additional penalty for the second offence at all, which in effect provided the Ellis discount.

The Court also noted that the sentencing judge expressly accepted the applicant's plea of guilty at the earliest opportunity as genuine evidence of contrition and remorse. Although the sentencing judge did not formally cite Ellis by name, Dowd J concluded it was difficult to conceive that he had not taken it into account when structuring the sentence as he did.

On the question of the overall severity of the sentence, the Court emphasised the seriousness of the principal offence and the large number of serious matters on the Form 1. It applied the principle from R v Bavandra that Form 1 offences, particularly serious ones, must be genuinely reflected in the sentence and not merely noted in passing. Given that the sentencing judge had already allowed the maximum 25% discount for the guilty plea and had found special circumstances to reduce the non-parole period, the Court could identify no error and concluded that the sentences imposed were the least available in the circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal refused

Key Takeaways

  • The Ellis principle requires a significant sentencing discount where an offender voluntarily discloses an offence that would otherwise have remained undetected, as confirmed by the High Court in Ryan v R.
  • Concurrent sentencing can, in appropriate circumstances, operate as the practical vehicle through which an Ellis discount is given, even without an express reference to the principle in the sentencing remarks.
  • Where a sentencing judge has already allowed the maximum discount for a guilty plea and found special circumstances reducing the non-parole period, the Court of Criminal Appeal will require clear error before reducing the sentence further.
  • Under the approach affirmed in R v Bavandra, serious Form 1 offences must be substantively reflected in the head sentence, not merely acknowledged.
  • No error was established on the facts: the Court of Criminal Appeal found the sentence was the least available given the totality of the offending, the Form 1 matters, and the applicant's criminal history.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1) (break, enter and steal)
- Crimes Act 1900 (NSW), s 154(a) (taking and driving a conveyance without consent)

Cases
- R v Ellis (1986) 6 NSWLR 603
- Ryan v R (2001) 206 CLR 267
- R v Bavandra (2000) 115 ACR 152