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Court of Criminal Appeal 22 August 2005

R v Stewart

[2005] NSWCCA 290

Theft & property
CRIMINAL LAW SENTENCING

Citation: R v Stewart [2005] NSWCCA 290
Court: NSW Court of Criminal Appeal
Date: 22 August 2005
Judge(s): Simpson J, Johnson J, Rothman J (Rothman J delivered the principal judgment)

Background

The applicant pleaded guilty in the District Court at Newcastle to two counts of break, enter and steal, contrary to s 112(1) of the Crimes Act 1900, carrying a maximum penalty of 14 years' imprisonment. The first offence occurred on 14 January 2003, when the applicant broke into a residential premises in Wickham and stole jewellery and watches valued at nearly $29,000. The second offence occurred on 30 March 2004, when the applicant broke into premises in Mayfield and stole a DVD player and movies.

A critical complicating fact arose from the first offence. On the same day as that break-in, the applicant was arrested while in possession of the stolen watches. He was charged, convicted, and sentenced in the Newcastle Local Court on 8 April 2003 to a fixed term of three months' imprisonment for goods in custody under s 527C(1)(a) of the Crimes Act 1900, backdated to 14 January 2003. That prior imprisonment arose directly from the same criminal conduct underpinning Count 1.

At sentencing in the District Court, Judge Coolahan imposed sentences that did not credit the applicant for the three months already served for the goods in custody offence. The applicant appealed, arguing he had effectively been punished twice for the same, or substantially overlapping, conduct.

  • Whether the sentencing judge erred by failing to credit the applicant for the three months served in relation to the goods in custody charge, which arose from the same criminal episode as Count 1.
  • Whether the commencement dates of the sentences correctly reflected the time already spent in custody.
  • Whether the goods in custody conviction, when included in the applicant's criminal history and used as an aggravating factor, amounted to impermissible double punishment.

Decision

The Court of Criminal Appeal found that the applicant had been punished twice for substantially overlapping criminal conduct. The goods in custody charge arose inevitably from the same break, enter and steal: the applicant was arrested on the day of the offence while carrying the stolen watches. The Court noted that, while it is theoretically possible to commit a break, enter and steal without subsequently being found in possession of the stolen goods, in practice the two offences are closely intertwined. Serving three months for the goods in custody charge before being sentenced for the break and enter that generated those goods amounted to a form of double punishment that the sentencing court was obliged to correct.

Rothman J held that the sentence for Count 1 should have commenced on 27 February 2004, a date adjusted to reflect proper credit for the prior custody, rather than the date fixed by Judge Coolahan. Similarly, the commencement date for Count 2 was adjusted accordingly.

On the question of criminal history, the Court accepted that the goods in custody conviction had been included in the applicant's criminal antecedents placed before the sentencing judge. However, the Court found that, on analysis, this was unlikely to have caused material harm to the applicant given the significant weight of his broader criminal history, which would have independently justified the level of denunciation and specific deterrence applied. The criminal history was to be used only as an aggravating factor in the manner prescribed by Veen [No. 2] and s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999.

The Court also identified special circumstances justifying a non-parole period bearing a different ratio to the balance of term than the statutory default. The applicant's offending was largely drug-related, and material before the Court indicated he had been in a rehabilitation program and drug-free since May 2004, though the Court noted that material was neither current nor in ideal form.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences imposed by Judge Coolahan DCJ quashed.
  • In lieu, the following sentences imposed:
  • Count 1: fixed term of 12 months' imprisonment commencing 27 February 2004 and expiring 26 February 2005.
  • Count 2: non-parole period of 12 months commencing 27 August 2004 and expiring 26 August 2005, with a balance of term of 2 years commencing 27 August 2005 and expiring 26 August 2007.

Key Takeaways

  • Where an offender has already served a term of imprisonment for an offence arising from the same, or substantially overlapping, criminal conduct as a later charge, the sentencing court must credit that prior custody to avoid double punishment.
  • The goods in custody offence under s 527C(1)(a) of the Crimes Act 1900 is so closely connected to the underlying break, enter and steal that imprisonment served for the former must be accounted for when sentencing for the latter.
  • Including a prior conviction in an offender's criminal history that was itself generated by the same criminal episode as the current charge can, in some circumstances, amount to an aggravating factor applied impermissibly. However, the Court of Criminal Appeal found on the facts that no material injustice had resulted, given the weight of the applicant's remaining history.
  • Under Veen [No. 2] and s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, criminal history is properly used to calibrate the level of leniency extended and to address specific deterrence, not to punish the offender for past conduct as such.
  • Special circumstances justifying a departure from the standard non-parole to balance-of-term ratio can be established by evidence of genuine rehabilitation and participation in drug treatment programs, even where that evidence is not fully current.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes Act 1900 (NSW), ss 112(1), 527C(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(d)

Cases
- R v Carter (Court of Criminal Appeal, 9 March 1978) 4 Petty Sessions Review 1859
- Pearce v The Queen (1998) 194 CLR 610
- R v Boulghourgian (2001) 125 A Crim R 540
- R v Simpson (2001) 53 NSWLR 704
- Veen v The Queen [No 2] (1998) 164 CLR 465
- R v Johnson [2004] NSWCCA 76