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Court of Criminal Appeal 22 September 2004

Regina v Rose

[2004] NSWCCA 326

Fraud & dishonestyTheft & property
CROWN APPEAL PRINCIPLES SENTENCING DISCRETION REHABILITATION.

Citation: Regina v Rose [2004] NSWCCA 326
Court: New South Wales Court of Criminal Appeal
Date: 22 September 2004
Judge(s): Spigelman CJ, Barr J, Hoeben J

Background

The respondent pleaded guilty to breaking and entering a dwelling house at Kings Cross and stealing property belonging to the victim, contrary to s 112(1) of the Crimes Act 1900. He also asked the court to take into account three further offences of receiving stolen property and three offences of making false statements to a pawnbroker when selling the stolen goods on the same day.

The respondent had a lengthy criminal history, including multiple convictions for breaking, entering and stealing, and was on a suspended sentence at the time of the offence. He had a long-standing drug addiction, having commenced using drugs at age fourteen, with two previous unsuccessful rehabilitation attempts.

The sentencing judge in the District Court, Ainslie-Wallace DCJ, deferred passing sentence under s 11 of the Crimes (Sentencing Procedure) Act 1999 to allow the respondent to complete a residential rehabilitation program run by the Salvation Army (the Bridge Program). The Director of Public Prosecutions appealed to the Court of Criminal Appeal, arguing the sentence was manifestly inadequate.

  • Whether the sentence imposed by the District Court was manifestly inadequate so as to warrant appellate intervention on a Crown appeal
  • Whether the sentencing judge erred in deferring sentence for the purpose of rehabilitation under s 11 of the Crimes (Sentencing Procedure) Act 1999, given the seriousness of the offence and the respondent's criminal history
  • Whether the principles governing Crown appeals, including the restraint to be exercised by appellate courts in substituting their own sentencing discretion, were satisfied

Decision

Hoeben J, with whom Barr J and Spigelman CJ agreed, dismissed the Crown appeal. The Court found that the sentencing judge had not fallen into error and that it was open to her Honour, on the facts before her, to adopt the deferred sentencing option.

The Court acknowledged the established principle that Crown appeals serve to correct sentences that are unreasonably disproportionate to the seriousness of an offence, address idiosyncratic judicial approaches, and maintain adequate sentencing standards. However, the Court emphasised that there must always be a place for leniency toward offenders, including those with poor records, where an experienced judge forms the view that leniency at that point in the offender's life may lead to genuine reform.

The Court identified several factors that supported the exercise of the sentencing discretion in the respondent's favour: the period of pre-sentence custody served in protective conditions without access to rehabilitation programs; the early plea of guilty; evidence of genuine remorse and contrition; and, most significantly, the strong indications of a real prospect of successful rehabilitation. By the time of sentence, the respondent had already completed the first stage of the Bridge Program and entered the second stage, with positive reports from the program.

The Court also noted the additional consideration that, by the time of the appeal hearing, the respondent had completed approximately eight months of the program and was nearing the end of the third stage. Quashing the sentence and imposing imprisonment at that point would have destroyed the rehabilitation gains made and introduced an element of double jeopardy, which the Court of Criminal Appeal has consistently sought to avoid.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that Crown appeals are not the appropriate vehicle to correct every sentence below the range a Crown prosecutor might expect; they exist primarily to maintain adequate sentencing standards and correct disproportionate outcomes.
  • A sentencing court may defer sentence for rehabilitation purposes under s 11 of the Crimes (Sentencing Procedure) Act 1999 even where an offender has a serious criminal history, provided there is cogent evidence of a genuine and realistic prospect of rehabilitation.
  • Where pre-sentence custody is served in conditions (such as protective custody) that deny access to rehabilitation programs, and where drugs are notoriously available in prison, those circumstances can weigh against a further custodial sentence and support a rehabilitation-focused disposition.
  • The element of double jeopardy, arising where an appellate court would resentence an offender who has already made significant rehabilitation progress, is a recognised factor that can independently support dismissal of a Crown appeal.
  • Spigelman CJ added a caution that "crossroads cases," where an offender appears to be seriously addressing long-term drug addiction, frequently do not result in lasting reform, and that the leniency extended on one occasion will not automatically be available if the offender reoffends.

Legislation and Cases Referenced

Legislation
- Court of Criminal Appeal Act 1912 (NSW), ss 5D, 11
- Crimes Act 1900 (NSW), s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, 33
- Pawnbrokers and Secondhand Dealers Act 1996 (NSW), s 24

Cases
- AB v The Queen (1999) 198 CLR 111
- R v Baker [2000] NSWCCA 85
- R v Howard [2001] NSWCCA 309
- R v KM & Ors [2004] NSWCCA 65
- R v Osenkowski (1982) 30 SASR 212
- R v Ponfield (1999) 48 NSWLR 327
- R v Thomson & Houlten (2000) 49 NSWLR 383
- R v Wall [2002] NSWCCA 42