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6
Court of Criminal Appeal 15 December 2003

R v Depoma

[2003] NSWCCA 382

Theft & property
CRIMINAL LAW SENTENCING DISPOSING OF STOLEN PROPERTY

Citation: Depoma v R [2003] NSWCCA 382
Court: New South Wales Court of Criminal Appeal
Date: 15 December 2003
Judge(s): Barr J; Kirby J

Background

The appellant was arrested in November 2002 after he was identified as having pawned goods stolen during a house break-in near Liverpool. He had pawned a video recorder, jewellery, and a television for a total loan of $300, falsely certifying to the pawnbroker that the goods were his. He pleaded guilty in the Local Court to two counts of disposing of stolen property under the Crimes Act.

The accompanying breaking, entering and stealing charge was withdrawn in the District Court, leaving the sentencing judge to deal only with the two disposal counts. The sentencing judge imposed two years' imprisonment on each count, to run concurrently, with a non-parole period of one year and two months. A number of additional offences were taken into account under s 32 of the Crimes (Sentencing Procedure) Act.

The appellant had a significant prior record, including offences dealt with in the Drug Court, and had committed fresh offences within a month of being released on parole. His criminal history was connected to longstanding heroin and cannabis use, and the sentencing judge noted that the appellant appeared to have reached a crossroads in terms of rehabilitation.

  • Whether the sentencing judge erred by failing to give adequate weight to the fact that the offences could have been dealt with summarily in the Local Court, where the maximum penalty was 12 months' imprisonment per count.
  • Whether the sentencing judge erred in declining to backdate the sentence to the date of arrest.
  • Whether the sentencing judge failed to apply the principles from R v Fernando regarding the sentencing of Aboriginal and Torres Strait Islander offenders.
  • Whether the sentences were manifestly excessive overall.

Decision

On the question of the Local Court jurisdiction, the Court of Criminal Appeal noted the established principle from R v Doan that the loss of a chance to have a matter dealt with summarily is a relevant but not universal mitigating factor. The Court acknowledged that the disposal charges were sent to the District Court only because they accompanied a more serious charge that was ultimately discontinued. However, the Court also observed that, given the appellant's recent pattern of offending, it was not certain that the prosecution would have agreed to summary disposal in any event.

The Court found no error in the sentencing judge's failure to expressly address the summary jurisdiction point in his remarks. The judge had indicated he would reflect on the submission over the luncheon adjournment, and the Court declined to draw an inference that he had simply forgotten it.

On the backdating submission, the Court accepted the sentencing judge's reasoning. Because the appellant had been serving other sentences up to 18 May 2003, the first day he was in custody solely for the present offences was 18 May 2003, and the sentences were properly ordered to commence from that date.

Regarding the Fernando principles, the sentencing judge had expressly stated he had taken those principles into account. The Court observed that a bare inference of failure, drawn only from the length of the sentences, was insufficient to establish error. The Court also accepted that the sentencing judge was entitled to take the view that a substantial period on parole, achievable only through a longer custodial term, was necessary given the appellant's repeated failure to respond to shorter sentences.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the loss of the opportunity for summary disposal is a relevant sentencing consideration, but is not automatically a mitigating factor and its weight varies with the circumstances of each case.
  • Where a sentencing judge expressly states that particular principles (such as those in Fernando concerning Aboriginal offenders) have been taken into account, an inference of failure cannot be drawn merely from the length of the sentences imposed.
  • Backdating a sentence is not automatic on arrest. Where an offender is serving other sentences at the time of arrest, the sentencing court must identify the first day the offender is in custody solely for the offences being sentenced.
  • A sentencing court may impose a term longer than the Local Court maximum where the circumstances of the case, including the offender's history and prospects of rehabilitation, support a substantial period of supervised parole.
  • No error was established in the two-year concurrent sentences with a 14-month non-parole period, the Court finding they fell within the proper range of the sentencing discretion.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 188 (disposing of stolen property)
- Crimes (Sentencing Procedure) Act (NSW), ss 32, 44

Cases:
- R v Doan (2000) 50 NSWLR 115
- R v Fernando & Anor [1999] NSWCCA 66