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Court of Criminal Appeal 7 June 2004

Regina v Lee William Barber

[2004] NSWCCA 153

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING ASSAULT POLICE IN EXECUTION OF DUTY BREAK, ENTER AND STEAL (X2) MATTERS ON FORM 1 SERIOUSNESS OF OFFENCES

Citation: Regina v Lee William Barber [2004] NSWCCA 153
Court: NSW Court of Criminal Appeal
Date: 7 June 2004
Judges: Dunford J, Adams J, Howie J

Background

The appellant pleaded guilty in the District Court of Sydney to one count of assault police in the execution of duty and two counts of break, enter and steal. The assault involved the appellant advancing on plainclothes officers in Darlinghurst while holding a 26cm screwdriver, requiring police to use capsicum spray. The two break-and-enter offences occurred in January and August 2002, targeting residential and other premises in Darlinghurst and Naremburn. A third break-and-enter offence and a charge of making a false statement to a pawnbroker were taken into account on Form 1 documents (a procedure by which additional charges are formally noted for sentencing purposes without separate conviction).

The appellant had an extensive criminal record dating back to 1987, including multiple prior convictions for break, enter and steal, theft, goods in custody, and assault. All offences except the police assault were committed either while on bail or while the appellant was an absconder on an outstanding warrant. He had a history of drug addiction and had previously attempted rehabilitation programs without lasting success.

District Court Judge Urquhart sentenced the appellant to an overall effective term of 6 years and 9 months, with a non-parole period of 4 years and 9 months. The appellant sought leave to appeal on the ground that the total sentence was manifestly excessive.

  • Whether the sentencing judge erred in accumulating the sentences for the three offences rather than ordering them to run concurrently
  • Whether the overall effective sentence of 6 years and 9 months with a 4 year and 9 month non-parole period was manifestly excessive when regard was had to the principle of totality

Decision

The Court of Criminal Appeal found no error in the structure of the sentences. Making the break-and-enter sentences wholly cumulative on the non-parole period for the assault police charge was appropriate given the need to protect the authority of the police and the disparate nature of the offences. Partial concurrency between the two break-and-enter sentences was also accepted as correct, given that each related to a completely separate instance of criminality.

However, when the Court examined the sentences in their totality, it concluded the overall term was manifestly excessive. Dunford J noted that, despite the appellant's appalling record, the sentencing judge had made favourable findings about a genuine desire to rehabilitate, which had some prospect of success. The Court also had regard to an affidavit indicating the appellant had completed courses in custody.

The Court re-sentenced the appellant, leaving the sentence for the assault police offence undisturbed but reducing each break-and-enter sentence from 4 years and 6 months to 4 years, with adjusted non-parole periods. The finding of special circumstances (which can allow for a longer period on parole relative to the head sentence) was not disturbed. Adams J and Howie J agreed with Dunford J.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence for assault police: unchanged at 18 months imprisonment (commencing 24 September 2002), non-parole period of 9 months
  • Each break-and-enter sentence reduced to 4 years imprisonment with a non-parole period of 2 years and 3 months
  • First break-and-enter sentence: 24 June 2003 to 23 June 2007, non-parole period expiring 23 September 2005
  • Second break-and-enter sentence: 24 June 2004 to 23 June 2008, non-parole period expiring 23 September 2006
  • Overall effective term: 5 years and 9 months, with a total non-parole period of 4 years; earliest parole eligibility 23 September 2006

Key Takeaways

  • Accumulation of sentences across separate and disparate offences, including a specific need to mark the seriousness of assaulting police, was confirmed as appropriate by the Court of Criminal Appeal in this matter.
  • Where multiple break-and-enter offences each represent wholly separate instances of criminality, partial concurrency rather than full concurrency between those sentences is capable of reflecting the correct sentencing approach.
  • The totality principle requires a court to step back and assess whether the combined effect of accumulated sentences is proportionate overall, even where each individual sentence and the structural decision to accumulate are each otherwise defensible.
  • Favourable findings about rehabilitation prospects, and evidence of positive conduct during custody, are relevant considerations at re-sentencing even where an offender has a lengthy and serious prior record.
  • Under s 262 of the Criminal Procedure Act 1986, additional charges may be taken into account on a Form 1 and factored into the sentencing exercise for a principal offence without resulting in a separate conviction or cumulative sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 60(1), 112
- Criminal Procedure Act 1986 (NSW), s 262
- Pawnbrokers and Second-Hand Dealers Act 1996 (NSW), s 24

Cases:
- Attorney General's Application [No 1] under s 26 of the Criminal Procedure Act, R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) [2002] NSWCCA 515