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Court of Criminal Appeal 28 April 2003

R v BLAKE

[2003] NSWCCA 113

Theft & property

Citation: R v Blake [2003] NSWCCA 113
Court: NSW Court of Criminal Appeal
Date: 28 April 2003
Judge(s): Hulme J; Simpson J

Background

The appellant had pleaded guilty in the District Court to three offences arising from two separate incidents in early 2002. The first two charges related to 7 January 2002, when the appellant used a tool to force open an abandoned hairdresser's premises and then acted as a lookout while two associates broke into an adjoining tobacconist's shop and stole goods worth approximately $15,000. The third charge concerned events in February 2002, when the appellant received stolen computer equipment worth a further $15,000 after soliciting contact with a former associate who was involved in criminal activity.

The appellant was sentenced by Twigg DCJ in the District Court on 10 October 2002. He received a fixed term of three years for the break and enter with intent, a four-and-a-half year term with a three-year non-parole period for the break, enter and steal, and a fixed twelve-month term for receiving stolen goods, all running concurrently from the same date.

The appellant sought leave to appeal on the basis that the sentences were manifestly excessive, and also challenged the sentencing judge's approach to the appellant's lesser role in the joint criminal enterprises.

  • Whether the sentences imposed were manifestly excessive having regard to the appellant's guilty plea, cooperation with police, remorse, steps towards rehabilitation, and the gap between his prior offending history and the current offences.
  • Whether the sentencing judge erred by failing to give adequate weight to the appellant's lesser role in the joint criminal enterprises, rather than treating all participants equally regardless of their level of involvement.

Decision

On the first ground, the Court found the sentences were not manifestly excessive. Hulme J acknowledged the appellant's positive personal factors, including his guilty plea (for which a 25% discount was applied), his cooperation with police, and a period of legitimate employment. However, the appellant's significant criminal history, including prior convictions for dishonesty and housebreaking offences from the 1990s, and his gambling addiction, which remained substantially unaddressed before sentencing, weighed against leniency.

On the second ground concerning the appellant's role, the Court acknowledged some ambiguity in the sentencing judge's remarks. The sentencing judge had suggested that it was irrelevant which participant was the organiser in a joint criminal enterprise, a proposition that is not strictly correct as a matter of sentencing principle. However, applying section 6 of the Criminal Appeal Act, the Court found that even if there was an error in that reasoning, the sentences remained appropriate and no lesser penalty should have been imposed given the appellant's history.

Hulme J also took the opportunity to criticise the Crown Prosecutor's submission below, which had described a break, enter and steal involving goods worth approximately $15,000 as being "at the lower end of the scale." His Honour rejected that characterisation outright, describing it as "utterly wrong" and indicating that such an offence merits substantial punishment. Simpson J agreed with the orders and noted that the offences had something of a professional character, and while the sentences were relatively severe, they fell comfortably within the available range.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing court may properly take into account an offender's prior criminal history when assessing what penalty is appropriate, even though this does not constitute punishing the offender twice for past offences.
  • A lesser role in a joint criminal enterprise is a relevant consideration at sentencing, and a sentencing judge's suggestion that relative roles are irrelevant may constitute an error in principle. However, under section 6 of the Criminal Appeal Act, the Court can dismiss the appeal if no lesser sentence should have been imposed.
  • Minimal or last-minute steps toward rehabilitation, such as a single attendance at Gamblers Anonymous shortly before sentencing, carry limited mitigating weight.
  • The Court expressly rejected the proposition that a break, enter and steal offence involving stolen goods worth approximately $15,000 should be characterised as being at the lower end of the seriousness scale for such offending.
  • Sentences that are relatively severe are not necessarily appealable; the relevant question is whether they fall outside the available range, not merely whether a lighter sentence might also have been justified.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(1), 113(1), 188
- Criminal Appeal Act 1912 (NSW), s 6

Cases: No specific cases were cited in the portions of the judgment provided.