Citation: Shorten v R [2005] NSWCCA 106
Court: New South Wales Court of Criminal Appeal
Date: 24 March 2005
Judge(s): James J, Hislop J, Hall J
Background
The appellant pleaded guilty in the District Court to one charge of breaking, entering and stealing from a residential property at Mittagong, committed over the weekend of 4 to 6 May 2001. The stolen items included jewellery valued at approximately $54,000, around $950 in cash, and some computer games. The offence was committed while the appellant was on parole, having been released from custody only days earlier.
The appellant was not spoken to by police until April 2003, almost two years after the offence. A DNA swab taken from the crime scene in May 2001 was identified as human blood in January 2002, and police were notified of a match with the appellant's DNA in June 2002. Despite that match, the appellant was not arrested until April 2003.
Judge Blackmore in the District Court sentenced the appellant to a fixed term of three years' imprisonment commencing 25 March 2003, with no non-parole period, a course requested by the appellant himself. The sentence was made partly cumulative on a sentence already being served for a separate breaking-and-entering offence.
Legal Issues
- Whether the sentencing judge failed to give adequate weight to the delay between the commission of the offence and the prosecution of the appellant.
- Whether the sentencing judge demonstrated sufficient "understanding and flexibility of approach" when sentencing for a stale offence, as required by established principle.
Decision
The sole ground of appeal was that Judge Blackmore had not adequately accounted for the delay in prosecution. The Court of Criminal Appeal acknowledged that the delay in this case was factually longer than in the comparable decision of R v Kay, particularly the gap between the DNA match in June 2002 and the appellant's arrest in April 2003. The Court declined to decide the appeal by direct comparison with Kay, preferring instead to apply the underlying sentencing principles.
James J referred to the principle derived from R v Todd, as elaborated in subsequent cases, that sentencing for a stale offence calls for a considerable measure of understanding and flexibility. A sentencing court is not required to treat delay as automatically producing a particular outcome; rather, it must demonstrate that it has taken the delay into account in a meaningful way.
The Court found that Judge Blackmore had done exactly that. His Honour expressly noted that, had DNA testing been completed promptly, the appellant could have been dealt with on the same indictment at the time of his August 2002 sentencing. The judge applied the totality principle (which requires a court to ensure the overall sentence reflects the total criminality involved, without crushing the offender) and structured the sentence so that it overlapped significantly with the existing term, resulting in only 18 months of additional custodial punishment.
No error was established. The Court granted leave to appeal but dismissed the appeal, with Hislop J and Hall J agreeing with the reasons of James J.
Orders Made
- Leave to appeal against sentence granted.
- Appeal dismissed.
Key Takeaways
- A sentencing court is not required to impose a lesser sentence simply because there has been delay in prosecution; it must, however, demonstrate understanding and flexibility in its approach when dealing with a stale offence.
- The totality principle remains an important tool when delay means an offender is sentenced for an earlier offence at a later time, after separate sentencing has already occurred for related conduct.
- No error was established where the sentencing judge expressly acknowledged the delay, considered what would have happened had proceedings been brought promptly, and structured the sentence to avoid disproportionate cumulative punishment.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that factual distinctions from prior cases (such as longer delays or a later DNA match) do not automatically produce a different outcome; the question is always whether correct principles were applied.
- The absence of a non-parole period, imposed at the appellant's own request, was a relevant feature of the sentencing structure in this case.
Legislation and Cases Referenced
Legislation
- Crimes Act (NSW), s 112(1) (breaking, entering and stealing; maximum penalty 14 years' imprisonment)
Cases
- Mill v The Queen (1988) 166 CLR 59
- R v Kay [2004] NSWCCA 130
- R v Law (1995) 84 A Crim R 142
- R v Todd [1982] 2 NSWLR 517