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Court of Criminal Appeal 20 June 2003

REGINA v. THOMAS

[2003] NSWCCA 165

Fraud & dishonestyTheft & property
CRIMINAL LAW SENTENCE CROWN APPEAL

Citation: Regina v Thomas [2003] NSWCCA 165
Court: NSW Court of Criminal Appeal
Date: 20 June 2003
Judge(s): Hodgson JA; Simpson J; Greg James J

Background

The respondent, a 27-year-old Aboriginal man with an extensive prior record, was sentenced in the District Court following guilty pleas to two offences: stealing a motor vehicle and receiving property stolen outside New South Wales (a Mack truck stolen from Queensland). Both offences were committed while the respondent was on bail pending an appeal against an earlier sentence in the Local Court.

The sentencing judge was aware of the respondent's significant history of drug-related dishonesty offending, which had been linked to a heroin and amphetamine addiction. The judge also took into account the respondent's personal circumstances, including the recent birth of his first child, his stated commitment to rehabilitation, his turn to religion, and a positive assessment of his sincerity in oral evidence.

The Director of Public Prosecutions appealed under section 5D of the Criminal Appeal Act 1912, contending the sentences imposed were inadequate. The central issue was whether the sentencing judge had properly treated the commission of both offences while on bail as an aggravating factor.

  • Whether the sentencing judge erred by failing to give sufficient weight to the aggravating circumstance that both offences were committed while the respondent was on bail
  • Whether the overall sentences, as structured, were inadequate as a result of that error
  • Whether, even if sentencing error was established, the Court of Criminal Appeal should exercise its discretion to dismiss the appeal rather than intervene

Decision

The Court of Criminal Appeal accepted the Crown's core submission that the sentencing judge fell into error. Committing offences while on bail is a recognised aggravating circumstance that ordinarily warrants condign punishment, whether by way of accumulation of sentences or an otherwise increased sentence. The court confirmed that the total sentences imposed were, in that respect, inadequate.

Despite finding error, the court declined to intervene. Greg James J invoked the well-established discretion in courts of criminal appeal to dismiss a Crown sentence appeal even where error is detected, where the circumstances of the case sufficiently warrant withholding the court's hand. That discretion draws on the principle, articulated in cases such as Osenkowski and Holder, that a sentencing judge's leniency may be reasonably excited by the particular circumstances of an offender.

The key factor in exercising that discretion was the sentencing judge's positive finding that the respondent had genuinely turned a corner. The judge had assessed the respondent in person, heard his oral evidence, and formed a considered view that he was sincere in his determination to remain drug-free and not re-offend. The Court of Criminal Appeal declined to disturb that assessment.

Hodgson JA added that the penalty must be understood as a last chance, and that any future offending should not attract similar leniency. All three judges agreed the appeal should be dismissed.

Orders Made

  • Appeal dismissed

Key Takeaways

  • Committing offences while on bail is a recognised aggravating circumstance that ordinarily requires a heavier sentence, whether through cumulation or an otherwise elevated penalty, and a failure to give it adequate weight can constitute a sentencing error.
  • Even where the Court of Criminal Appeal identifies a sentencing error on a Crown appeal, an established discretion permits the court to decline to intervene if the circumstances sufficiently warrant leniency.
  • The discretion to dismiss a Crown appeal notwithstanding error is informed by principles affirmed in Osenkowski and Holder, which recognise that a sentencing court's sympathies may be reasonably engaged by an offender's particular circumstances.
  • In dismissing the appeal, the court placed significant weight on the sentencing judge's in-person assessment of the respondent's genuine rehabilitation, including his oral evidence, recent fatherhood, and religious commitment.
  • Hodgson JA's observation that the outcome represented a "last chance" signals that the discretion is exercised narrowly, and that a history of similar leniency will not be repeated in the event of further offending.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), ss 154AA, 189A(i)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Justices Act 1902 (NSW), s 51A

Cases:
- Moffitt (1990) 20 NSWLR 114
- WHS (CCA, unreported, 27 March 1995)
- Regina v Hitchcock (CCA, unreported, 13 July 1998)
- Regina v Osenkowski (1982) SASR 212
- Queen v Holder (1983) 3 NSWLR 245