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Court of Criminal Appeal 19 March 2004

REGINA v Guiliano DI GREGORIO

[2004] NSWCCA 9

Theft & property

Citation: REGINA v Guiliano DI GREGORIO [2004] NSWCCA 9
Court: New South Wales Court of Criminal Appeal
Date: 19 March 2004
Judge(s): Beazley JA, O'Keefe J, Bell J (Bell J delivering the leading judgment)

Background

The respondent pleaded guilty in the District Court to one count of breaking, entering and stealing and one count of being carried in a conveyance without the consent of the owner. A further offence of making a false statement under the Pawnbrokers and Second-hand Dealers Act 1996 was placed on a Form 1 to be taken into account on sentence. The breaking and entering offence involved the respondent jemmying open a window of a residential property in Hunters Hill and stealing camera equipment valued at approximately $1,550. He subsequently pawned the items using a false declaration of ownership.

The respondent had an extensive criminal history dating from age 13, including multiple prior convictions for breaking and entering, possession of housebreaking implements, and motor vehicle-related offences. He had served several terms of imprisonment. At the time of the offences, he was on parole. The sentencing judge, Coorey DCJ, adjourned the proceedings to 25 June 2004 under s 11 of the Crimes (Sentencing Procedure) Act 1999, without imposing a custodial sentence, in light of evidence of the respondent's rehabilitation progress.

The Crown (Director of Public Prosecutions) appealed, contending that the adjournment under s 11 was inadequate and that a sentence of full-time custody was the only appropriate outcome.

  • Whether the Court of Criminal Appeal had jurisdiction to entertain a Crown appeal against an order adjourning proceedings under s 11 of the Crimes (Sentencing Procedure) Act 1999 for inadequacy of sentence.
  • Whether the sentencing judge erred in adjourning proceedings under s 11 rather than imposing a term of full-time custody, given the respondent's serious criminal history and the aggravating circumstance that the offences were committed while on parole.
  • Whether evidence of rehabilitation could justify marked leniency for an offender with a long history of offending driven by drug addiction.

Decision

The Court confirmed its jurisdiction to hear Crown appeals against s 11 adjournment orders, relying on its earlier decision in R v Trindall [2002] NSWCCA 364. Such an order is subject to the same principles of restraint that govern Crown appeals from final sentences. The threshold for granting leave requires more than mere disagreement with the sentencing outcome; a court of criminal appeal must be satisfied the sentence is definitely outside the appropriate range.

The Court acknowledged that both offences were significantly aggravated by being committed while the respondent was on parole. However, the Court accepted that, in cases where offending is the product of long-term drug addiction, cogent evidence of rehabilitation has on previous occasions been found to justify marked leniency.

Bell J, with whom Beazley JA and O'Keefe J agreed, concluded that it could not be said, as at the date of the sentencing hearing, that the adjournment under s 11 was not open to the sentencing judge. The respondent's progress toward rehabilitation was of a sufficient order to admit of the deferral. The Crown had not established that the outcome was definitely outside the appropriate range.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed it has jurisdiction under s 5D of the Criminal Appeal Act 1912 to entertain a Crown appeal against an adjournment order made under s 11 of the Crimes (Sentencing Procedure) Act 1999, as established in R v Trindall.
  • Crown appeals against sentencing outcomes, including adjournments under s 11, are subject to the same principles of restraint as Crown appeals from final sentences. Leave requires more than mere disagreement; the sentence must be definitely outside the appropriate range.
  • Where an offender's criminal conduct is attributable to long-term drug addiction, cogent rehabilitation evidence can justify substantial leniency, even where offences are aggravated by commission while on parole.
  • Offences committed while on parole are a significant aggravating factor, but that factor alone does not automatically preclude a sentencing court from exercising its discretion to adjourn under s 11.
  • In dismissing the appeal, the Court did not substitute its own view of the appropriate sentence; it applied the principle, drawn from Everett v The Queen (1994) 181 CLR 295, that disagreement about adequacy is an insufficient basis for appellate intervention.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(1), 154A(1)(b), 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, 32, 33
- Criminal Appeal Act 1912 (NSW), s 5D
- Pawnbrokers and Second-hand Dealers Act 1996 (NSW), s 15(4)

Cases:
- Attorney-General's Application [No. 1] under s 26 of the Criminal Appeal Act; R v Ponfield & ors [1999] NSWCCA 435; 48 NSWLR 327
- Everett v The Queen (1994) 181 CLR 295
- Griffiths v The Queen (1977) 137 CLR 293
- R v Duncombe [2001] NSWCCA 483
- R v Eastway (unreported) NSWCCA, 19 May 1992
- R v Miles [2001] NSWCCA 274
- R v Palu [2002] NSWCCA 381; 134 A Crim R 174
- R v Richards [1981] 2 NSWLR 464
- R v Tindall & Gunton (1994) 74 A Crim R 275
- R v Trindall [2002] NSWCCA 364; 133 A Crim R 119