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Court of Criminal Appeal 2 November 2004

Regina v Dodd

[2004] NSWCCA 374

Theft & property
CRIMINAL LAW SENTENCING GOOD PROSPECTS OF REHABILITATION.

Citation: Regina v Dodd [2004] NSWCCA 374
Court: New South Wales Court of Criminal Appeal
Date: 2 November 2004
Judge(s): Barr J, Buddin J, M W Campbell AJ

Background

The applicant, a young Aboriginal man aged 18 at the time of the offence, pleaded guilty in the District Court to breaking and entering a dwelling house in circumstances of aggravation and stealing cash and personal items. The aggravating circumstance was that an occupant, a 74-year-old woman, was present in the house at the time. The applicant came forward voluntarily and admitted his involvement to police.

The District Court sentenced him to eight years imprisonment with a non-parole period of five years, commencing 31 March 2003. The sentencing judge applied the standard non-parole period of five years under the Crimes (Sentencing Procedure) Act 1999, treating it as directly applicable to the offence.

The applicant sought leave to appeal against the severity of the sentence. The Crown conceded that a sentencing error had occurred in the District Court, and the matter proceeded on the basis that re-sentencing was appropriate.

  • Whether the standard non-parole period under Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 applied to an offender who pleaded guilty, rather than being convicted after trial
  • Where the offence fell within the spectrum of objective seriousness
  • What weight should be given to the applicant's youth, background, criminal history, and prospects of rehabilitation in determining the appropriate sentence

Decision

Following the Court of Criminal Appeal's earlier decision in R v Way, the standard non-parole period of five years applied only where the offender was convicted after trial. Because the applicant had entered a guilty plea upon arraignment, the sentencing judge had erred in treating that period as directly applicable. The Crown properly conceded this error. The standard non-parole period nonetheless remained relevant as a reference point for a mid-range case decided after trial, before any adjustments.

On re-sentencing, Campbell AJ assessed the objective seriousness of the offence as falling somewhat below mid-range. The offence was unplanned and opportunistic, the intrusion was brief, and the presence of the occupant was itself the element that satisfied the aggravating circumstance rather than a separate aggravating feature. The distress caused to the elderly victim upon waking to find her home had been entered and a significant sum taken was nonetheless acknowledged.

The 25 percent discount for the guilty plea and demonstrated remorse, applied by the original sentencing judge, was confirmed as appropriate and at the top of the available range. The applicant's history of offending, including prior entries into dwellings and the fact that he was on conditional liberty at the time of the offence, were treated as significant aggravating factors under section 21A of the Crimes (Sentencing Procedure) Act 1999.

The Court accepted the applicant had good prospects of rehabilitation, supported by psychological assessment showing average cognitive functioning, sound literacy skills, and a developing interest in music and vocational training. Special circumstances were found, justifying a longer than usual parole period, based on the applicant's age and the need for extended supervised rehabilitation.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence quashed and replaced with a non-parole period of 30 months and a total term of five years, both commencing 31 March 2003, with the non-parole period expiring 30 September 2005
  • 1 October 2005 specified as the earliest date of eligibility for release on parole

Key Takeaways

  • Following R v Way, the standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 applies only upon conviction after trial, not following a guilty plea. For guilty pleas, it continues to serve as a reference point for a mid-range case, subject to appropriate adjustment.
  • Where the presence of a person in the dwelling is the element constituting the circumstance of aggravation, that same fact does not separately elevate the offence further up the seriousness spectrum when assessing objective gravity.
  • A guilty plea discount of 25 percent, reflecting both utilitarian value and genuine remorse, was confirmed as sitting at the top of the available range, consistent with R v Thomson and Haulton.
  • Good prospects of rehabilitation, particularly in a young offender with demonstrated capacity for education and vocational development, can support a finding of special circumstances and an extended parole period.
  • Committing an offence while on conditional liberty remains a significant aggravating factor under section 21A(2) of the Crimes (Sentencing Procedure) Act 1999, even where the prior offences were of a different kind.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54B, Division 1A of Part 4

Cases:
- R v Way (2004) NSWCCA 131
- R v Davies [2004] NSWCCA 319
- R v Thomson and Haulton (2000) 49 NSWLR 338
- R v Wickham [2004] NSWCCA 193