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25
Court of Criminal Appeal 27 July 2005

Kerrie-Ellen Robyn Knight v R

[2005] NSWCCA 253

Also reported as (2005) 155 A Crim R 252
Theft & property
SENTENCING APPLICANT RE

Citation: Knight v R [2005] NSWCCA 253
Court: NSW Court of Criminal Appeal
Date: 27 July 2005
Judges: Mason P, Barr J, Johnson J

Background

The appellant pleaded guilty in the Armidale Local Court to 36 charges arising from a prolific series of break-ins targeting small business premises in country towns, predominantly Uralla and Walcha, over approximately 12 months between May 2002 and May 2003. The offences included 27 counts of break, enter and steal, three counts of break and enter with intent to steal, larceny, disposal of stolen property, and stealing a motor vehicle. A further two goods-in-custody offences were listed on a Form 1 document for the sentencing judge's consideration.

The offences were carried out with co-offenders. Targets included a butcher shop, bakery, hairdresser, roadhouse, agricultural stockist, tyre service, and motor mechanic workshop, among others. Entry was typically forced using jemmy bars or other tools, premises were ransacked, and little to none of the stolen property was recovered.

On 19 February 2004, the District Court judge sentenced the appellant to a total effective term of four years and six months imprisonment, with a non-parole period of three years. The appellant sought leave to appeal, contending that the sentencing judge erred in applying the principles in Pearce v The Queen and in treating the fact that the offences were committed in company as an aggravating factor under s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999.

  • Whether the sentencing judge correctly applied the Pearce v The Queen principles when structuring cumulative and concurrent sentences across 36 offences
  • Whether the sentencing judge erred by treating the commission of offences "in company" as an aggravating factor under s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999, in circumstances where that feature was already inherent in the charges
  • Whether the total effective sentence imposed in the District Court was manifestly excessive

Decision

The Court of Criminal Appeal, with all three judges agreeing in reasons delivered by Johnson J, found that the sentencing judge had erred in treating the commission of offences in company as an aggravating factor under s 21A(2)(e). Because the charges as formulated and proved already incorporated the fact that the appellant acted with co-offenders, relying on that same fact as a further aggravating factor amounted to double-counting. This is consistent with the principle established in Queen v De Simoni that a sentencing court may not take into account, as an aggravating circumstance, a fact that constitutes an element of a more serious offence or is already embedded in the offence charged.

The Court also found error in the sentencing judge's application of the Pearce principles. Those principles require that, when multiple offences are sentenced, cumulative sentences must reflect the overall criminality without producing a result that is disproportionate or crushing. The sentencing judge's structuring of the sentences did not adequately comply with this framework.

Despite identifying those two errors, the Court found that the total effective sentence imposed in the District Court was not manifestly excessive when considered against the full picture of the appellant's offending. Accordingly, the errors did not lead to any reduction in the overall sentence; rather, the Court re-sentenced the appellant to achieve the same total effective outcome but with a sentence structure that properly applied the Pearce principles and removed the erroneous aggravating factor from the individual assessments.

Orders Made

  • Leave granted to appeal against sentences imposed in the Armidale District Court on 19 February 2004
  • Appeal allowed and all sentences imposed on 19 February 2004 quashed
  • Applicant re-sentenced across all 36 counts with cascading fixed terms and non-parole periods, structured in accordance with Pearce principles, with sentences commencing from 21 July 2003
  • The earliest date of eligibility for release on parole set at 20 July 2006

Key Takeaways

  • A sentencing court errs under s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 where it treats commission of an offence "in company" as an aggravating factor when that circumstance is already captured in the charge itself, thereby constituting impermissible double-counting.
  • The Pearce v The Queen principles require that cumulative sentences across multiple counts be structured so that the total effective sentence remains proportionate to the overall criminality, and failure to apply this framework constitutes an error of principle.
  • Identifying a sentencing error does not automatically result in a reduced sentence. The Court of Criminal Appeal confirmed that the total effective sentence here was appropriate and re-sentenced the appellant to the same overall term, correcting only the structural and reasoning errors.
  • Where multiple charges arising from a sustained course of offending are sentenced, courts must take care to assess each sentence individually while ensuring the aggregate result does not exceed what the total criminality warrants.
  • The decision illustrates the Court's approach to prolific property offending in regional areas: the volume, duration, and impact on small business communities were material factors sustaining the overall sentence length, even after errors in the original reasoning were corrected.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(1), 113(1), 117, 154AA, 189, 527C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(e), 32
- Criminal Appeal Act 1912 (NSW)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Queen v De Simoni (1980-1981) 147 CLR 383
- R v Thomson and Houlton (2000) 49 NSWLR 383
- Re Attorney-General's Application (No. 1); Regina v Ponfield and Ors (1999) 48 NSWLR 327
- R v Knight [2004] NSWCCA 145
- R v AEM Snr [2002] NSWCCA 58
- R v Carr (2002) 135 A Crim R 171
- R v Hammoud (2000) 118 A Crim R 66
- R v Johnson [2005] NSWCCA 186
- R v Martin [2005] NSWCCA 190
- R v El Hani [2004] NSWCCA 162
- R v Fidow [2004] NSWCCA 172
- R v Kalache (2000) 111 A Crim R 152
- R v Myers [2002] NSWCCA 162
- R v Wheeler [2000] NSWCCA 34