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14
Court of Criminal Appeal 5 May 2004

R v Kay

[2004] NSWCCA 130

Theft & property
CRIMINAL LAW SENTENCING

Citation: R v Kay [2004] NSWCCA 130
Court: NSW Court of Criminal Appeal
Date: 5 May 2004
Judge(s): McColl JA, Levine J, Hidden J

Background

The applicant pleaded guilty in the District Court to one count of break, enter and steal, arising from a 2001 burglary at a shopping centre in which digital cameras worth over $19,000 were stolen. He was identified through DNA evidence matched to blood found at the scene, a process that took until January 2003 due to a backlog at the Department of Analytical Laboratories. He was not arrested until April 2003 and was sentenced in July 2003.

The applicant had separately pleaded guilty in January 2002 to five offences committed around the same period and served twelve months imprisonment with a nine-month non-parole period. By the time he was sentenced for the 2001 burglary, he had served that sentence and had, according to evidence before the court, substantially rehabilitated himself, including getting off drugs and obtaining employment.

The applicant sought leave to appeal against the severity of the sentence of two years and nine months imprisonment with a non-parole period of eighteen months, arguing that the sentencing judge failed to give adequate weight to the delay in prosecution and his rehabilitation during that period.

  • Whether the sentencing judge erred by failing to allow an adequate discount for the delay between the commission of the offence (October 2001) and the date of sentence (July 2003)
  • Whether the principle in R v Todd [1982] 2 NSWLR 517 and Mill v R (1988) 166 CLR 59, which can attract a sentencing discount where an offender has been left in prolonged uncertainty about their fate, applied in circumstances where the delay was attributable to the offender's own failure to volunteer guilt
  • Whether the sentencing judge adequately took into account rehabilitation in determining the appropriate sentence

Decision

McColl JA, with Levine J and Hidden J agreeing, held that the Todd principle did not apply on the facts of this case. The core reasoning was that the delay was not a product of prosecutorial inaction or systemic failure in a way that caused the applicant relevant prejudice. The applicant had not come forward to confess his involvement in the October 2001 offence and had remained silent, presumably hoping the connection would never be established. Accordingly, he had not been left in a state of uncertainty or suspense in the relevant sense.

The Court drew a clear distinction between cases where delay imposes genuine hardship on an offender who is awaiting resolution of known charges, and cases where an offender has actively or passively concealed guilt. In the latter situation, the principles developed in Todd and Mill are not engaged. The Court observed that to reward the applicant for his period of successful concealment with a substantially reduced sentence would be inconsistent with those authorities.

McColl JA also found that, in any event, Solomon DCJ had in fact taken both the delay and the rehabilitation into account. His Honour applied the totality principle, acknowledged the applicant's rehabilitation, and noted that the delayed investigative process prevented the matters from being dealt with together. The Court also accepted the Crown's submission that, given the seriousness of the offence and the relevant aggravating factors, no lesser sentence would have been warranted even if the primary ground had succeeded.

Orders Made

  • Leave to appeal granted, appeal dismissed.

Key Takeaways

  • The Todd principle (and its High Court endorsement in Mill v R) allows for a sentencing discount where prolonged delay has caused genuine uncertainty and hardship to an offender, but this principle does not apply where the delay was attributable to the offender's own failure to volunteer guilt.
  • An offender cannot claim the benefit of a sentencing discount for delay on the basis of time spent successfully concealing involvement in an offence; the Court of Criminal Appeal described such an outcome as rewarding concealment.
  • A sentencing judge may address the effects of delay not only through a direct discount but also through the application of the totality principle, particularly where the delayed offence formed part of a continuous course of conduct with separately sentenced matters.
  • No error was established in the sentencing discretion: the sentencing judge had expressly considered both the delay in prosecution and the applicant's rehabilitation, and the sentence imposed was within the proper range for a serious break, enter and steal offence under s 112(1) of the Crimes Act 1900 (NSW).
  • The significance of prosecutorial delay in sentencing remains fact-specific; the circumstances of each case determine whether the Todd principle is engaged at all.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1) (break, enter and steal; maximum penalty fourteen years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(j); s 44(2) (special circumstances)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Todd [1982] 2 NSWLR 517
- Mill v R (1988) 166 CLR 59
- R v Abookahled (NSW Court of Criminal Appeal, 9 May 1991, unreported)