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Court of Criminal Appeal 26 February 2003

Regina v Challis

[2003] NSWCCA 48

Theft & property
CRIMINAL LAW APPEAL SEVERITY BREAK AND ENTER OFFICES POSSESSION OF HOUSE BREAKING IMPLEMENTS MULTIPLE OFFENCES

Citation: Regina v Challis [2003] NSWCCA 48
Court: Court of Criminal Appeal
Date: 26 February 2003
Judge(s): O'Keefe J, Bell J

Background

The applicant, a repeat property offender, was sentenced in the District Court after admitting to 13 offences under s 112(1) of the Crimes Act 1900, including multiple counts of breaking and entering offices and possession of housebreaking implements. The offences were committed on two separate occasions: two in October 1999 and eleven in May 2001. The combined sentences resulted in a total term of 6 years' imprisonment with a non-parole period of 4 years and 6 months.

At the time of both sets of offences, the applicant was subject to outstanding sentencing orders. The 1999 offences were committed while an additional term from a prior sentence was still in force. The 2001 offences were committed while the applicant was bound by a suspended sentence from New South Wales and a separate suspended sentence from Queensland.

The applicant sought leave to appeal against the severity of the sentences, raising challenges based on manifest excess, undue weight given to aggravating factors, and insufficient weight given to his subjective circumstances and prospects of rehabilitation.

  • Whether the sentencing judge erred in describing the applicant as having "refused" previous opportunities for rehabilitation, and whether this constituted impermissible reasoning
  • Whether the judge's failure to find special circumstances revealed inadequate consideration of the applicant's subjective case
  • Whether the total sentence, measured against Judicial Commission statistics, was manifestly excessive
  • Whether undue weight was placed on the aggravating circumstances of the offences

Decision

On the rehabilitation finding, the Court accepted that the sentencing judge's use of the word "refused" was not strictly accurate, in the sense that the applicant had not formally declined offers of assistance. However, the Court found the substance of the observation was sound: the applicant had repeatedly been given opportunities through non-custodial and partially suspended sentences, and had responded by committing further offences. The word "refused" was properly understood as conveying that the applicant had not taken advantage of those opportunities, and this reading disclosed no material error.

On special circumstances, the Court held that the absence of a special circumstances finding was not itself an error, as the existence of special circumstances is a question of fact. The onus rests on the applicant to establish them, and no such finding was warranted on the evidence before the sentencing judge.

On the statistics argument, the Court clarified that Judicial Commission statistics relate to the highest single sentence imposed, not to the aggregate of accumulated sentences. Given that the applicant faced 13 offences spread across two separate criminal episodes, comparison with statistics applicable to single offences was not an appropriate basis for measuring whether the overall sentence was excessive.

Considering the number of offences, the applicant's criminal history, the planned nature of the conduct, and the fact that all offences were committed while the applicant was subject to outstanding sentencing orders, the Court found no error in the sentences. It declined to characterise the sentences as manifestly excessive, noting that the sentencing judge had expressly acknowledged these were not the worst type of break and enter offences, which itself moderated the penalty.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • Judicial Commission statistics on sentencing reflect the highest single sentence imposed in comparable cases; they are not an appropriate comparator for the aggregate of accumulated sentences arising from multiple offences.
  • Where an applicant has repeatedly committed offences while subject to non-custodial or suspended sentences, a sentencing judge may treat that pattern as demonstrating a failure to take advantage of rehabilitation opportunities, even where the applicant did not formally decline any programme.
  • The existence of special circumstances (which would allow a longer parole period relative to head sentence) is a question of fact, and the onus falls on the applicant to establish them.
  • In dismissing the appeal, the Court confirmed that a prior criminal history is a legitimate aggravating factor, particularly where it reveals dangerous propensity or the need for condign deterrence, consistent with principles stated in Veen (No. 2) v The Queen (1988) 164 CLR 465.
  • Committing multiple offences while already subject to suspended sentences and an unexpired additional term of imprisonment are significant aggravating factors that can sustain sentences at the higher end of the available range.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1) (breaking and entering)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32 (Form 1 matters taken into account)

Cases
- Veen (No. 2) v The Queen (1988) 164 CLR 465
- Re Attorney General's Application [No. 1]: Regina v Ponfield (1999) 48 NSWLR 327
- Childs v Kelly (1948) 65 WN (NSW) 141
- Freeman v Stankovic (1960) 77 WN 631
- Williams v Hansen (1957) SR (NSW) 428
- O'Hare v DPP (NSWSC 430, unreported, 22 May 2000)
- Regina v Harris (NSWSC, unreported, 18 April 2000)