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Court of Criminal Appeal 27 March 2003

R v Nicholls

[2003] NSWCCA 76

Theft & property

Citation: R v Nicholls [2003] NSWCCA 76
Court: NSW Court of Criminal Appeal
Date: 27 March 2003
Judge(s): Studdert J; Smart AJ

Background

The appellant pleaded guilty in the District Court to eight charges of stealing from retail outlets, including major supermarkets and other stores across Sydney and country New South Wales. The offences were committed between December 1998 and May 2000 as part of an organised shoplifting syndicate centred on a family group. A NSW Police strike force investigated the syndicate, which involved multiple offenders operating in coordinated groups of three to six people targeting specific stores.

The appellant was one of nine offenders sentenced together by Acting Judge Nash in the District Court on 11 March 2002. In total, when including nineteen offences taken into account on a Form 1 (additional charges considered at sentencing without separate conviction), the goods involved across all matters attributed to the appellant were valued at approximately $76,000. The sentencing judge described the enterprise as well-organised crime carried out with considerable precision and expertise.

Acting Judge Nash imposed a principal sentence of four years and six months imprisonment, with a non-parole period of two years and eight months, together with seven concurrent fixed terms of nine months each. The appellant sought leave to appeal, appearing in person and filing detailed written submissions.

  • Whether the sentencing judge wrongly characterised the appellant as a principal or organiser of the criminal enterprise
  • Whether the sentences were affected by a parity problem, particularly in comparison to co-offender Mark Nicholls
  • Whether the sentencing judge erred in his methodology by adopting a six-year starting point before applying a 25% discount for the guilty plea, given the five-year statutory maximum for each individual offence
  • Whether the overall sentence was manifestly excessive

Decision

On the question of role, the Court found no error in the sentencing judge's characterisation of the appellant as a principal or organiser. The appellant had accepted responsibility for exposing family members to shoplifting, acknowledged responsibility for offences committed by others in the family, and was personally involved in 19 of the 43 offences committed during the relevant period. The use of the word "principal" did not cause the sentencing exercise to miscarry.

Regarding parity, the Court applied the test from R v Ilbay: an applicant must show that a reasonable person looking at the circumstances would regard the applicant's sense of grievance as justified. The Court found the appellant had not discharged that obligation. The primary parity comparison was with Darren Green, who was sentenced for fewer offences over a shorter period, and with Mark Nicholls, whose sentence reflected his own distinct role and circumstances.

On the sentencing methodology, the Court acknowledged that Acting Judge Nash did not strictly follow the approach mandated by Pearce v The Queen, which requires a separate appropriate sentence to be fixed for each offence. However, the Court found the judge had in substance arrived at six years as a proper assessment of the total criminality before applying the guilty plea discount. That assessment was described as appropriate, particularly given the appellant's prior criminal history for shoplifting and the fact that most offences were committed while she was subject to a two-year recognizance.

Applying section 6(3) of the Criminal Appeal Act, the Court was required to form a positive opinion that a different sentence was warranted before interfering. The Court could not form that positive opinion. The end result, a sentence of four years and six months with a non-parole period of two years and eight months, was not manifestly excessive given the totality of the appellant's criminality.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court's characterisation of an offender as a "principal" or organiser will not cause a sentence to miscarry where the agreed facts and the offender's own admissions support that description.
  • Under the parity principle confirmed in R v Ilbay, an offender seeking to challenge a sentence by comparison with a co-offender must demonstrate that a reasonable person would regard the grievance as justified, not merely that a disparity exists.
  • Where a sentencing judge takes a global approach to assess total criminality before applying a guilty plea discount, an appellate court may uphold the result even if the strict Pearce v The Queen methodology of fixing individual sentences for each offence was not precisely followed, provided the outcome properly reflects the overall criminality.
  • Section 6(3) of the Criminal Appeal Act sets a high threshold for appellate intervention: the Court of Criminal Appeal must form a positive opinion that a different sentence was warranted in law before it can substitute its own view.
  • Offending committed while subject to a recognizance, combined with a prior criminal history for similar offences, are relevant factors that can support a substantial sentence even for property offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 117 (stealing: maximum five years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32 (Form 1 procedure)
- Criminal Appeal Act 1912 (NSW), s 6(3) (threshold for appellate intervention on sentence)

Cases:
- Pearce v The Queen (1998) 194 CLR 610 (requirement to fix appropriate sentence for each offence)
- R v Ilbay [2000] NSWCCA 251 (test for parity in co-offender sentencing)
- R v Simpson (2001) 53 NSWLR 704 (application of s 6(3) threshold)