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Court of Criminal Appeal 17 February 2003

REGINA v. REILLY

[2003] NSWCCA 20

Theft & propertyTraffic & drivingPublic order & justice offences
CRIMINAL LAW APPEAL SENTENCE EFFECT OF COMPLEX OF SENTENCES NO DOUBLE PUNISHMENT EFFECT NO ERROR.

Citation: Regina v Reilly [2003] NSWCCA 20
Court: New South Wales Court of Criminal Appeal
Date: 17 February 2003
Judge(s): James J; Greg James J

Background

The applicant, a young man with an extensive criminal history, appeared in the District Court at Bathurst in November 2001 to be sentenced on four offences: two counts of breaking, entering and stealing, one count of possessing goods reasonably suspected of being stolen, and one count of driving while disqualified. On several earlier matters, an appellate District Court judge had suspended sentences conditionally on the applicant entering into two-year good behaviour bonds.

The applicant breached those bonds. The triggering breaches included possessing a knife and committing a further break and enter offence while he was already serving a separate sentence for demanding money with menaces. The District Court reactivated the suspended sentences and imposed a further sentence for the new break and enter. The combined effect was an aggregate sentence of approximately five years with a non-parole period of two and a half years.

The applicant sought leave to appeal against the sentences imposed, arguing errors in the sentencing judge's treatment of contrition and rehabilitation, and contending that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred in failing to give proper weight to the applicant's contrition as a mitigating factor.
  • Whether the sentencing judge erred in his assessment of the applicant's prospects for rehabilitation.
  • Whether the overall sentence was manifestly excessive, particularly given that reactivating the suspended sentences alongside imposing a new sentence created what was said to be a double punishment effect.

Decision

On contrition, the Court of Criminal Appeal found no error in the sentencing judge's reasoning. The judge had accepted that a guilty plea carries an indication of contrition but concluded, on the specific facts, that the applicant was unlikely to have been genuinely contrite given his drug addiction and the opportunistic nature of the offending. That reasoning was open on the material.

On rehabilitation, the Court acknowledged the general principle that rehabilitation is a particularly important consideration when sentencing young offenders. However, the Court held that the sentencing judge was entitled to find that the applicant was not motivated toward rehabilitation, especially given his repeated reoffending across multiple matters and his extensive criminal record. The applicant's completion of courses in custody did not displace that conclusion.

On the central submission, that reactivating the suspended sentences alongside a new sentence produced a form of double punishment, the Court rejected the argument. Greg James J observed that this is precisely the mechanism that operates when an offender abuses the leniency extended to them through a suspended sentence. The reactivation of a suspended sentence upon breach does not require that the new sentence be reduced to offset it.

The Court confirmed that the totality principle continues to operate: the overall sentence must not reach an artificially inflated level of severity. However, applying that principle here did not lead to a finding of manifest excess. The Court granted leave to appeal but dismissed the appeal.

Orders Made

  • Application for leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Reactivating a suspended sentence upon breach, and then imposing a cumulative sentence for the new offending, does not constitute double punishment. The two outcomes are distinct legal consequences serving different functions.
  • The totality principle still applies to the entire sentencing complex to guard against an artificially severe aggregate outcome, but it does not require a reduction in the new sentence merely because earlier suspended sentences have been reactivated.
  • A sentencing court is entitled to find that a guilty plea reflects the utilitarian value of an early resolution without being satisfied that the offender holds genuine contrition, provided that finding is supported by the specific circumstances of the offending.
  • In dismissing the appeal, the Court affirmed that an extensive record of reoffending, including repeated breaches of bonds granted as a "last chance," can properly lead a sentencing judge to discount prospects for rehabilitation.
  • No error was established in the overall sentence of five years with a two-and-a-half-year non-parole period across the aggregate complex of offences.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly s 21A (factors in sentencing)

Cases:
- No cases were cited in the judgment.