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Court of Criminal Appeal 21 March 2002

Regina v Warren Richards

[2002] NSWCCA 84

Theft & propertyTraffic & drivingFirearms & weapons
BREAK ENTER AND STEAL SUSPENDED SENTENCE ILL HEALTH OF DEPENDENTS "SPECIAL CIRCUMSTANCES" NOT MANIFESTLY EXCESSIVE

Citation: Regina v Warren Richards [2002] NSWCCA 84
Court: New South Wales Court of Criminal Appeal
Date: 21 March 2002
Judge(s): Buddin J; Greg James J

Background

The applicant was a 30-year-old man with a significant criminal history, including multiple prior convictions and periods of imprisonment for break, enter and steal. In May 2000, the District Court sentenced him to a nine-month suspended sentence with a good behaviour bond for a break, enter and steal offence committed in February 2000.

He breached that bond within months by committing a further break, enter and steal on 12 August 2000, targeting a 77-year-old woman living in a retirement village. He denied involvement when interviewed by police, claiming to have found the stolen items on a footpath. While on bail in September 2000 (granted on condition he undertake drug rehabilitation), he breached bail conditions repeatedly and committed further offences in April 2001, including driving whilst disqualified. He was separately sentenced for two firearms offences in June 2001.

The District Court ultimately sentenced him to three years' imprisonment with a two-year non-parole period for the August 2000 break, enter and steal (with the April 2001 offences taken into account on a Form 1 document), plus a concurrent fixed term of nine months for the breach of the suspended sentence. Both sentences were backdated to 4 May 2001. The applicant sought leave to appeal against the severity of those sentences.

  • Whether the sentencing judge erred by failing to quantify or apply a 25% discount for the applicant's plea of guilty.
  • Whether sufficient weight was given to the ill-health of the applicant's wife and child, and the hardship caused by imprisonment at a country gaol.
  • Whether the sentencing judge had power to disqualify the applicant's driver's licence in respect of the drive whilst disqualified charge, given that charge appeared on a Form 1 document rather than attracting a separate conviction.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error of fact or law in the sentencing process.

On the guilty plea discount, Buddin J declined to assume that no appropriate discount had been allowed simply because the sentencing judge did not express a specific percentage. The structure and quantum of the sentences imposed indicated that a proper discount had been factored in.

On the personal hardship grounds, the Court accepted that the sentencing judge had considered and appropriately weighted the applicant's wife's illness, his child's serious medical disability, and the difficulties of a country gaol placement. The concession made at sentence, that the impact on dependants was not exceptional, remained relevant. The "special circumstances" finding, allowing a longer-than-normal parole period to facilitate drug rehabilitation supervision, was also upheld.

The most significant legal question concerned the licence disqualification. The Crown initially conceded, in its written submissions, that the sentencing judge lacked power to disqualify the applicant given there was no conviction for the driving offence (it having been dealt with on a Form 1). However, once the Court drew attention to section 34 of the Crimes (Sentencing Procedure) Act 1999, the Crown withdrew that concession. Section 34 expressly authorises a court, when taking a further offence into account, to make any "ancillary order" it could have made upon conviction for that offence. Disqualification of a licence falls squarely within the definition of "ancillary order" under that provision.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge is not required to express a guilty plea discount as a specific percentage; the Court of Criminal Appeal will assess whether an appropriate discount was applied by examining the structure and quantum of the sentences imposed.
  • Under section 34 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court retains power to make ancillary orders, including driver's licence disqualification, in relation to offences taken into account on a Form 1 document, even where no separate conviction is recorded for those offences.
  • "Ancillary order" is defined in section 34(4) to include orders relating to restitution, compensation, costs, forfeiture, disqualification, and loss or suspension of a licence or privilege.
  • A finding of "special circumstances" justifying a longer parole period relative to the non-parole period may properly be grounded in the need for extended post-release supervision to address drug dependence, even where personal hardship to dependants is not considered exceptional.
  • No error was established in the sentencing judge's balancing of mitigating factors, including the applicant's five-year offence-free period, his capacity for rehabilitation, and the health circumstances of his family.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1) (break, enter and steal; maximum penalty 14 years' imprisonment)
- Road Transport (Driver Licensing) Act 1998 (NSW), s 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 34 (ancillary orders for Form 1 offences)

Cases cited: No cases were cited in the judgment.