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Court of Criminal Appeal 31 March 2005

Regina v Webster

[2005] NSWCCA 110

Theft & property
S112(1) CRIMES ACT 1900 MULTIPLE OFFENCES RELEVANCE OF MAXIMUM SENTENCE DELAY IN SENTENCING PROPER USE OF OFFENCES ON FORM 1.

Citation: Regina v Webster [2005] NSWCCA 110
Court: New South Wales Court of Criminal Appeal
Date: 31 March 2005
Judge(s): Giles JA, Hoeben J, Johnson J

Background

The applicant, a 45-year-old man with an extensive criminal history dating back to his teenage years, pleaded guilty in the Local Court to three counts of break, enter and steal, one count of larceny, and one count of malicious damage. Three further break-and-enter offences were included on a Form 1 (a document listing additional offences to be taken into account at sentencing without separate punishment). The offences were committed between May 2001 and June 2003, predominantly targeting construction sites and involving building materials, fittings, and tools.

Six of the eight offences were committed while the applicant was on bail or on parole, a significant aggravating factor. The applicant had been identified through DNA analysis, which caused considerable delay between the commission of the offences and sentencing. The stolen property, valued at approximately $20,000, was never recovered.

Latham DCJ sentenced the applicant in the District Court on 28 May 2004. The sentences were partially accumulated, producing a head sentence of 7 years with a non-parole period of 4 years. Her Honour found special circumstances, resulting in a parole period proportionally longer than the statutory default, to allow for supervision during the applicant's rehabilitation from long-term drug addiction.

  • Whether the sentencing judge adopted a starting point that was too high relative to the objective seriousness of the offences
  • Whether the maximum penalty for the offences was given undue weight
  • Whether insufficient allowance was made for the delay between the offences and sentencing, and for the offences taken into account on Form 1
  • Whether the sentences were at the top of the established sentencing range in a way that was unwarranted
  • Whether, taken together, the sentences were manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Hoeben J (with Giles JA and Johnson J agreeing) found that no patent error was discernible in the sentencing judge's remarks and that none of the discrete arguments advanced by the applicant, individually or collectively, established that the total sentences were beyond what the circumstances warranted.

On the question of the starting point and the relevance of the maximum penalty, the Court accepted that the maximum sentence for break, enter and steal (14 years) was a relevant reference point when assessing the appropriate sentence, without it being treated as determinative. Her Honour's use of that maximum was not shown to be erroneous.

The Court rejected the submission that insufficient weight was given to the delay in sentencing caused by the time taken for DNA analysis. Her Honour had considered the delay and was entitled to conclude that the circumstances of the offending and the applicant's history outweighed its mitigating force. The Court also found no error in the way the Form 1 offences were handled: their effect was properly reflected in the sentence for the November 2002 offence to which they were attached.

On the sentencing statistics argument, the Court acknowledged that the sentences sat at the higher end of the established range. However, it endorsed the approach described in R v Wheeler, which holds that in cases involving multiple offences there is a legitimate sentencing interest in ensuring that community confidence in the administration of justice is maintained, and that a person who commits six or seven offences does not receive an effective sentence indistinguishable from one imposed for one or two offences. No error was established.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that where an offender commits multiple offences, the sentencing court may legitimately sit toward the higher end of the established range to avoid creating a perception that prolific offending attracts no meaningful additional punishment.
  • A maximum penalty is a relevant reference point in the sentencing exercise for multiple offences under s 112(1) of the Crimes Act 1900, but its relevance must be applied without treating it as automatically controlling the outcome.
  • Delay between the commission of offences and sentencing, even where caused by factors outside the offender's control (such as the time required for DNA analysis), does not necessarily produce a substantial reduction when weighed against a serious pattern of recidivist offending.
  • Offences listed on a Form 1 must be properly reflected in the sentence for the principal offence to which they are attached; the Court found no error in the sentencing judge's approach to that task here.
  • In dismissing the appeal, the Court reinforced that a finding of manifest excess requires more than demonstrating that sentences sit at the upper range of comparable cases, particularly where aggravating factors such as offending on bail or parole are prominently present.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(1), 117, 195(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Pearce (1998) 194 CLR 610
- R v Wheeler [2000] NSWCCA 34
- R v Kay [2004] NSWCCA 130
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, 56 NSWLR 146
- Osenkowski v The Queen (1982) 30 SASR 212
- R v Richards (1981) 2 NSWLR 464
- Ponfield (1999) 48 NSWLR 327