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Court of Criminal Appeal 21 November 2003

Regina v King

[2003] NSWCCA 352

Theft & property
CRIMINAL LAW AND PROCEDURE SENTENCE MANIFEST INADEQUACY CROWN APPEAL AGGRAVATION MULTIPLE OFFENCES

Citation: Regina v King [2003] NSWCCA 352
Court: New South Wales Court of Criminal Appeal
Date: 21 November 2003
Judge(s): Grove J, Handley JA, Adams J

Background

The respondent, a young man born in November 1983, pleaded guilty before a magistrate to five principal charges of break-and-enter and related property offences committed in early to mid 2002. He was committed to the District Court for sentencing, where Payne DCJ imposed an effective head sentence of three years imprisonment with a non-parole period of one year and nine months.

The offences involved multiple residential break-and-enters in the Woodcroft area, often committed with co-offenders. Stolen property totalling tens of thousands of dollars was largely disposed of in exchange for cash and drugs, with most of it unrecovered. Critically, the respondent committed all of these offences while he was unlawfully at large, having absconded from juvenile detention in January 2002 while awaiting the hearing of an appeal.

The respondent had a substantial prior record, predominantly from his juvenile years, including multiple robbery offences. The Crown appealed the sentences as manifestly inadequate.

  • Whether the sentences imposed by the District Court were manifestly inadequate in all the circumstances
  • What weight should be given to the fact the respondent was unlawfully at large when the offences were committed
  • How to approach parity where co-offenders had been dealt with through the Youth Drug Court rather than by conventional sentencing
  • Whether the sentencing judge had properly balanced rehabilitation against objective seriousness and other sentencing considerations

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding the original sentences were manifestly inadequate. Grove J identified several significant aggravating factors that were insufficiently reflected in the sentences below: the respondent was unlawfully at large throughout the offending period, the offences were multiple and serious residential break-and-enters, and a large amount of stolen property remained unrecovered.

On the parity question, the Court addressed the fact that co-offenders had been dealt with through the Youth Drug Court rather than through conventional sentencing. The Court treated that circumstance as a special feature that diminished the relevance of parity as a restraining consideration on the Crown appeal. The co-offenders' outcomes were the product of a specialist court process not available to the respondent, rather than a straightforward sentencing comparison.

Adams J added that although there were signs the respondent could be rehabilitated, and rehabilitation is an important sentencing objective, it is not the only one. The objective seriousness of offending, including the offender's actual moral culpability, remains the fundamental measure against which subjective factors are weighed. The Court found the District Court had weighed those factors in a significantly mistaken way.

Grove J also observed, in passing, that sentencing remarks expressed in a formulaic, form-like manner may not serve their primary purpose, which is to explain to the offender directly why the punishment is being imposed in terms the offender can reasonably understand.

Orders Made

  • On the first charge: 4 years 6 months imprisonment from 12 August 2002, expiring 11 February 2007, with a non-parole period of 2 years 9 months
  • On the second charge (taking into account Form 1 matters): 6 years imprisonment from 12 August 2002, expiring 11 August 2008, with a non-parole period of 3 years 6 months
  • On the third charge: 4 years 6 months imprisonment from 12 August 2002, expiring 11 February 2007, with a non-parole period of 2 years 9 months
  • On the fourth charge: 4 years 6 months imprisonment from 12 August 2002, expiring 11 February 2007, with a non-parole period of 2 years 9 months
  • On the fifth charge (taking into account second Form 1 matters): 4 years 6 months imprisonment from 12 August 2002, expiring 11 February 2007, with a non-parole period of 2 years 9 months
  • First date of eligibility for parole: 11 February 2006

Key Takeaways

  • Being unlawfully at large at the time of offending is a significant aggravating factor that must be meaningfully reflected in the sentencing exercise.
  • Where co-offenders have been dealt with through a specialist court such as the Youth Drug Court, the parity principle carries reduced weight in a Crown appeal against sentence, as the co-offenders' outcomes are not the product of a conventional sentencing comparison.
  • Objective seriousness of the offending, including actual moral culpability, provides the fundamental measure in sentencing; subjective factors such as rehabilitation prospects operate as counterweights rather than as the primary determinant.
  • The Court of Criminal Appeal confirmed that when increasing sentences on a Crown appeal, some degree of leniency is conventionally extended to the offender.
  • Grove J noted that sentencing remarks serve a primary purpose of explaining punishment to the offender in terms they can understand, and that formulaic or form-like expressions of facts may not adequately achieve that purpose.

Legislation and Cases Referenced

Cases:
- R v Dunn [2003] NSWCCA 169
- Re AG Application No 1 (Ponfield) (1999) 45 NSWLR 327

Legislation:
- Crimes Act 1900 (NSW), s 112(1) (break, enter and commit serious indictable offence, maximum 14 years imprisonment) (referenced in the facts)