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Court of Criminal Appeal 25 February 2005

Regina v McRae

[2005] NSWCCA 13

Theft & property

Citation: Regina v McRae [2005] NSWCCA 13
Court: New South Wales Court of Criminal Appeal
Date: 25 February 2005
Judge(s): Dunford J, Bell J

Background

The applicant was convicted in the District Court at Campbelltown of six counts of break, enter and steal under s 112(1) of the Crimes Act 1900, with a further seven offences of break, enter and steal and one count of attempted break, enter and steal taken into account on a Form 1. The offences were committed over a seven-and-a-half-month period in 2001 and involved a systematic method of disabling telephone alarm systems before forcing entry into premises. Total property stolen across the indictment counts exceeded $76,000, with approximately $15,000 in damage caused.

The sentencing judge imposed an aggregate sentence of eight and a half years' imprisonment with a non-parole period of five years. A 25 percent discount was applied to reflect the utilitarian value of the guilty pleas. Several offences were committed while the applicant was on bail or subject to a conditional liberty order, and he had a lengthy prior criminal history.

The applicant sought leave to appeal against those sentences, contending they were manifestly excessive and that insufficient weight had been given to his voluntary disclosure of guilt and his cooperation with police.

  • Whether the sentences imposed were manifestly excessive having regard to the totality of the offending and the applicant's personal circumstances
  • Whether the sentencing judge gave adequate weight to the applicant's voluntary disclosure of his guilt, analogous to the principles in R v Ellis
  • Whether the applicant should be re-sentenced by the Court of Criminal Appeal

Decision

The Court of Criminal Appeal, in reasons delivered by Bell J (with whom Dunford J agreed), found that the appeal could not succeed on the ground of manifest excess. The Court observed that the sentencing judge had in fact extended a very considerable degree of leniency to the applicant. The sentences for counts two to six were backdated and made wholly concurrent, which had the practical effect of subsuming sentences previously imposed for unrelated offences. This approach, while criticised in earlier authority as applied to offences committed against different victims at different times, ultimately weighed against any finding that the total sentences were excessive.

On the question of voluntary disclosure, the Court accepted that the applicant's confessions had been significant. However, the applicant was already suspected by police and knew inquiries were ongoing, which distinguished his position materially from that of the accused in R v Ellis, where disclosure occurred in circumstances of genuine risk of remaining undetected. The Court also noted that s 23(3) of the Crimes (Sentencing Procedure) Act 1999 requires that any lesser penalty imposed under that provision not produce a sentence unreasonably disproportionate to the nature and circumstances of the offence.

Taking the structure of the sentences as a whole, including the leniency already extended, the Court concluded that no lesser sentence was warranted in law. The number of offences, their objective seriousness, and the fact that all were committed in breach of conditional liberty meant intervention was not justified.

Orders Made

  • Time for filing the notice of appeal extended to 21 September 2004
  • Application for leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing structure that backdates sentences and makes all terms wholly concurrent, thereby subsuming earlier unrelated sentences, represents a significant concession of leniency that weighs against a later finding of manifest excess on appeal.
  • The Ellis principle, which recognises sentence reduction for voluntary disclosure of offending, operates most strongly where the offender discloses conduct that police had no real prospect of detecting. Where an applicant knew police were already actively investigating, the Court of Criminal Appeal confirmed the case is "considerably removed" from Ellis.
  • Under s 23(3) of the Crimes (Sentencing Procedure) Act 1999, a lesser penalty for assistance or disclosure must not produce a sentence unreasonably disproportionate to the nature and circumstances of the offence. This statutory constraint operates as a limit on reductions that might otherwise follow from an applicant's cooperation.
  • Making sentences for offences against different victims, committed on separate occasions, wholly concurrent has been criticised in the Court of Criminal Appeal, even where the overall result favours the offender.
  • Committing offences while on bail and in breach of a conditional liberty order are factors that significantly affect the sentencing calculus and can outweigh mitigating features such as remorse and positive custodial conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23(3), 33
- Justices Act 1902 (NSW), s 51

Cases:
- R v Ellis (1986) 6 NSWLR 603
- R v Engert (1995) 84 A Crim R 67
- R v KM [2004] NSWCCA 65
- R v Letteri (NSWCCA, unreported, 18 March 1992)
- R v Ponfield (1999) 48 NSWLR 327
- R v Wright (1997) 93 A Crim R 48