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19
Court of Criminal Appeal 14 April 2005

REGINA v. GRUBE

[2005] NSWCCA 140

Theft & property

Citation: REGINA v. GRUBE [2005] NSWCCA 140
Court: NSW Court of Criminal Appeal
Date: 14 April 2005
Judge(s): Grove J, Howie J, Hall J

Background

The applicant, a repeat property offender, was sentenced in the District Court by Patten DCJ following convictions for a significant number of break, enter and steal offences and related property crimes committed across Sydney and surrounding areas between July 2002 and April 2003. The total criminality was substantial: stolen goods were valued at over $500,000, and motor vehicles valued at approximately $1.5 million were also taken. The offences were committed while the applicant was on bail.

The sentencing structure involved 27 offences on the indictment and a further 42 offences taken into account on a Form 1 document (a mechanism under the Crimes (Sentencing Procedure) Act 1999 allowing additional charges to be considered at sentencing without separate conviction). The effective total sentence was 12 years imprisonment with a non-parole period of 8 years.

The applicant sought leave to appeal against the severity of the sentence imposed on Count 3, a single break, enter and steal offence, for which Patten DCJ imposed 7 years imprisonment with a 3-year non-parole period, after taking into account 42 Form 1 offences. The applicant argued that sentence was manifestly excessive.

  • Whether the sentence imposed on Count 3 was manifestly excessive, given that the 42 Form 1 offences dwarfed the principal offence in terms of the value of property involved.
  • Whether the Form 1 sentencing mechanism required a proportionality or relativity analysis between the principal offence and the Form 1 offences, such that the sentence could only modestly exceed what would otherwise be appropriate for the principal offence alone.
  • How the statutory cap in section 33(3) of the Crimes (Sentencing Procedure) Act 1999 operates in relation to the Form 1 process, and whether it imposes a narrower constraint than the maximum penalty for the principal offence.

Decision

Hall J, with whom Grove J agreed, dismissed the application. His Honour held that the sentence of 7 years for Count 3, incorporating the 42 Form 1 offences, was not manifestly excessive. The sentencing judge had been required to reflect the totality of the applicant's criminality, which involved numerous invasions of residential premises and theft of very substantial value over a wide geographical area and a prolonged period.

The central submission for the applicant drew on observations by Spigelman CJ in Attorney General's Application No. 1 of 2002 to argue that the increase in sentence attributable to Form 1 offences could only reflect personal deterrence and retribution, and must bear some proportionate or relative relationship to the principal offence. Hall J rejected this. He found no such proportionality or relativity requirement in the statutory scheme, and reasoned that importing such a requirement would risk producing sentences that failed to reflect total criminality, potentially bringing the administration of justice into disrepute.

Hall J accepted that where a court takes into account a multiplicity of serious offences, it must allow the sentence to reflect the total criminality revealed by the offender's entire course of conduct. In the present case, the number and magnitude of the Form 1 offences justified the uplift applied by Patten DCJ, and no impermissible double counting was established.

Howie J added a further observation. He noted that the applicant's argument, if accepted, would render the word "maximum" in section 33(3) of the Act meaningless. The statutory cap on Form 1 sentencing is the maximum penalty applicable to the principal offence, not some narrower range of sentences otherwise appropriate for that offence. The legislature plainly contemplated that the Form 1 process could produce a sentence considerably higher than would otherwise be imposed for the principal offence standing alone.

Orders Made

  • Application for leave to appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Form 1 sentencing mechanism does not require the sentence for the principal offence to bear a proportionate or relative relationship to the gravity of the Form 1 offences compared to the principal offence.
  • Reflecting total criminality is the governing purpose: where a multiplicity of serious offences is taken into account on a Form 1, the sentencing court must allow the sentence to capture the full extent of the offender's course of conduct.
  • Under section 33(3) of the Crimes (Sentencing Procedure) Act 1999, the only statutory ceiling on the sentence imposed for the principal offence when Form 1 offences are considered is the maximum penalty for that principal offence, not the range of sentences that might otherwise have been appropriate for it in isolation.
  • In dismissing the appeal, the Court reasoned that a proportionality requirement would, in cases involving large numbers of serious Form 1 offences, risk mandating a manifestly inadequate sentence determined on an artificially narrow basis.
  • No error of double counting was established against the sentencing judge, who had properly applied the elements of personal deterrence and retribution in relation to the Form 1 offences.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 3, Part 3; section 33(3)
- Crimes Act 1900 (NSW), sections 112(1) and 344A

Cases:
- Attorney General's Application No. 1 of 2002 (2002) 56 NSWLR 146
- Bougdis (1989) 41 A Crim R 125
- Barton (2001) 121 A Crim R 184