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Court of Criminal Appeal 14 May 2004

Regina v Niass

[2004] NSWCCA 149

Theft & property
CRIMINAL LAW SENTENCE CROWN APPEAL BREAK ENTER AND STEAL SUSPENDED SENTENCE DELAY

Citation: Regina v Niass [2004] NSWCCA 149
Court: New South Wales Court of Criminal Appeal
Date: 14 May 2004
Judge(s): Hodgson JA, Levine J, Hidden J (Hidden J delivered the principal judgment)

Background

The respondent was convicted after a jury trial in the Parramatta District Court of break, enter and steal under s 112(1) of the Crimes Act 1900, an offence carrying a maximum penalty of fourteen years imprisonment. The offence occurred in the early hours of Christmas Eve 2001, when the respondent participated with two others in breaking into a Guildford factory and attempting to steal a Bobcat loader valued at approximately $45,000. Police arrived before the theft was completed and arrested the respondent, though his co-offenders escaped.

The sentencing judge, Payne DCJ, found that the respondent had played a "vital and integral" role by providing the truck and metal ramps used to transport the Bobcat. She imposed a two-year sentence with a fifteen-month non-parole period, but suspended the sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 on the respondent entering a good behaviour bond.

The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912, contending the suspended sentence was manifestly inadequate given the seriousness of the offence and the respondent's criminal history.

  • Whether the suspended sentence imposed for a planned, commercially motivated break, enter and steal was manifestly inadequate
  • What weight the sentencing judge was entitled to give to delay in the proceedings when calibrating the appropriate sentence
  • Whether the respondent's prospects of rehabilitation could justify the imposition of a suspended sentence in the circumstances
  • Whether the Court of Criminal Appeal should intervene in the exercise of the sentencing discretion on a Crown appeal

Decision

The Court of Criminal Appeal unanimously dismissed the Crown appeal, finding no error in Payne DCJ's sentencing approach. Hidden J, with whom Hodgson JA and Levine J agreed, held that the sentencing judge had properly considered the aggravating factors, including the respondent's criminal record, the planning involved in the offence, and the fact that he was subject to community service orders at the time. She had also properly identified the mitigating factors, including that the property was ultimately not lost or damaged and that the respondent had reasonable prospects of rehabilitation.

A central factor was the significant delay between the offence and the sentence. The respondent was arrested on 24 December 2001, committed for trial in May 2002, but did not come before the sentencing judge until late 2003. Hidden J affirmed the established principle, drawn from Mill v The Queen (1988) 166 CLR 59, that delay in the criminal justice system that is not attributable to the offender can constitute a mitigating circumstance warranting a reduction in the sentence that would otherwise be imposed.

The Court also accepted that a suspended sentence, though appearing lenient on its face, constitutes a genuine punishment in the hierarchy of sentencing alternatives. Drawing on the reasoning in R v Foster [2001] NSWCCA 215, Hidden J emphasised that a suspended sentence can be a sufficiently severe and appropriate sanction where rehabilitation is a primary sentencing objective, even at some expense to deterrence and denunciation. Payne DCJ's remarks at sentencing demonstrated that she had approached the task with these principles in mind.

Finally, even if the sentence had been found manifestly inadequate, Hidden J indicated the Court would have declined to intervene in the exercise of its residual discretion, noting an affidavit from the respondent attesting to continued rehabilitative progress in the five months since sentencing. However, no finding of manifest inadequacy was made, making resort to that discretion unnecessary.

Orders Made

  • The Crown appeal was dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that delay in proceedings not attributable to the offender can properly reduce what would otherwise be an appropriate sentence, consistent with the principle in Mill v The Queen.
  • A suspended sentence occupies a legitimate position in the sentencing hierarchy and can constitute adequate punishment where the sentencing court identifies genuine prospects of rehabilitation and structures the sentence accordingly.
  • Where an offender demonstrates ongoing rehabilitative progress after sentencing, that progress may inform the Court of Criminal Appeal's exercise of its residual discretion not to intervene, even where manifest inadequacy might otherwise be established.
  • Crown appeals against sentence carry well-recognised constraints on appellate intervention; the Court will not lightly substitute its own view for that of the sentencing judge where no error in principle has been demonstrated.
  • Aggravating features such as planning, offending while subject to existing orders, and a criminal record do not automatically preclude a suspended sentence where the sentencing judge weighs all relevant factors and provides adequate reasons.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 21A(2) and (3)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Mill v The Queen (1988) 166 CLR 59
- R v Blanco (1999) 106 ACrimR 303
- R v Hayes [2001] NSWCCA 358
- R v Ponfield (1999) 48 NSWLR 327
- R v Todd (1982) 2 NSWLR 517
- R v Zamagias [2002] NSWCCA 17
- R v Foster [2001] NSWCCA 215