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Court of Criminal Appeal 25 October 2004

Regina v CHEN

[2004] NSWCCA 369

Assault & violenceTheft & property
APPEAL AGGRAVATED BREAK ENTER AND STEAL OFFENCE COMMITTED IN COMPANY

Citation: Regina v CHEN [2004] NSWCCA 369
Court: Court of Criminal Appeal, New South Wales
Date: 25 October 2004
Judge(s): McClellan AJA; Studdert J; James J

Background

The appellant was an illegal immigrant from China who, together with a co-offender, entered a dwelling at Hurstville in November 2001 and stole jewellery, cash and other items. During the break-in, the occupants returned home and were confronted by the appellant and two others, all carrying knives, who threatened to kill them if they made a noise. The sentencing judge, Puckeridge DCJ in the District Court, found this threatening conduct to be a serious aggravating feature.

The appellant was not charged with the present offence until November 2002, almost a year after it occurred. In the intervening period, he had been held in custody on remand for separate charges (including goods in custody), served a short sentence on one of those charges, and then held at Villawood Detention Centre due to his immigration status. He was ultimately committed for trial on the break and enter charge in April 2003 and pleaded guilty in September 2003.

Puckeridge DCJ imposed a sentence of four years imprisonment with a non-parole period of two and a half years, backdated to commence from November 2002 when the appellant was first charged with the present offence. A twenty percent discount was applied for the guilty plea, and special circumstances were found, reducing the non-parole period to 62.5 percent of the total term. The appellant sought leave to appeal against that sentence.

  • Whether the sentencing judge failed to take adequate account of the time the appellant spent in custody and detention before the commencement date of the sentence
  • Whether the totality principle required the sentencing judge to take that earlier custody into account when fixing the overall sentence
  • Whether the sentence should have been backdated to December 2001, when the appellant was first taken into custody on the unrelated charges
  • Whether the sentence was manifestly excessive having regard to all the circumstances

Decision

On the backdating and totality arguments, the Court of Criminal Appeal found no error. The earlier periods of custody were either referable to unrelated charges or to the appellant's immigration status, not to the offence for which he was being sentenced. The Court held it would have been contrary to principle to backdate the sentence to December 2001, since that earlier custody bore no connection to the break, enter and steal offence.

The Court distinguished the present circumstances from those in Mill v The Queen and R v Todd, which concern situations where delay and prolonged uncertainty about a pending charge operate unfairly on an offender. Here, the lapse of time was relatively short and the appellant was not deprived of any opportunity to have the present charge disposed of earlier. Accordingly, the totality principle had no application.

On the question of the appellant's immigration status and the associated delay, the Court accepted that Puckeridge DCJ had properly addressed these matters when finding special circumstances. The reduction of the non-parole period by six months was an appropriate response.

The Court upheld the overall sentence as appropriate for an objectively serious offence, the gravity of which was substantially increased by the use of knives and explicit threats to kill the occupants. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The totality principle and backdating of sentences apply where earlier custody is connected to the offence being sentenced; where prior custody relates to unrelated charges or to immigration detention, backdating to that earlier period is contrary to principle.
  • Authorities such as Mill v The Queen and R v Todd are confined to circumstances where delay and prolonged uncertainty about a pending charge operate unfairly on the offender. No such unfairness arises where the offender was not deprived of an earlier opportunity to resolve the charge.
  • A sentencing court may properly address an offender's immigration status and any associated delay through the mechanism of finding special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), rather than by backdating the sentence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a four-year sentence with a two and a half year non-parole period was appropriate for an aggravated break, enter and steal offence involving threats to kill and the use of knives against occupants who interrupted the offenders.
  • The carrying of weapons and explicit death threats made to victims during a residential break-in constitute serious aggravating features that bear significantly on the objective gravity of an offence under s 112(2) of the Crimes Act 1900 (NSW).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2) (aggravated break enter and steal, maximum 20 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (special circumstances)
- Criminal Appeal Act 1912 (NSW)

Cases
- Mill v The Queen (1988) 166 CLR 59
- R v Todd [1982] 2 NSWLR 517
- R v Simpson (2001) 53 NSWLR 704
- R v Frascella [2001] NSWCCA 137
- R v Chi Luong (unreported, NSWCCA, 9 March 1994)
- R v Deeble (unreported, NSWCCA, 19 September 1991)
- R v John David (unreported, NSWCCA, 20 April 1995)
- R v Jones (unreported, NSWCCA, 3 August 1992)
- R v Niass (unreported, NSWCCA, 16 November 1988)