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Court of Criminal Appeal 14 September 2005

Joseph Allen Bellamy v R

[2005] NSWCCA 329

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE AGGRAVATED BREAK, ENTER AND STEAL (X 2) FORM 1 MATTERS PARITY

Citation: Joseph Allen Bellamy v R [2005] NSWCCA 329
Court: New South Wales Court of Criminal Appeal
Date: 14 September 2005
Judge(s): Grove J, Simpson J, Buddin J

Background

The appellant pleaded guilty in the Local Court to two counts of aggravated break, enter and steal, with the aggravating circumstance being that each offence was committed "in company." The first offence occurred in June 2000, when the appellant and two others broke into a designer clothing store in Sydney's CBD and took goods valued at over $12,000. The second occurred in March 2004, when the appellant and a co-offender broke into the computer laboratory of a major publishing company and stole 17 laptop computers worth $42,500.

The appellant had a significant criminal history dating back to 1996, including prior convictions for similar offences, and was on parole when he committed the second offence. Seven additional offences, including further aggravated break, enter and steal matters, were placed before the sentencing judge on a Form 1 document to be taken into account at sentence.

In the District Court, Armitage DCJ sentenced the appellant to a total effective non-parole period of three years and a total effective head sentence of three years and eleven months. The appellant sought leave to appeal on the grounds of parity, an alleged unlawful condition attached to parole, and error in treating his prior criminal record as an aggravating factor.

  • Whether the sentencing judge had impermissibly imposed a condition on the appellant's parole by recommending residential rehabilitation upon release.
  • Whether the sentences imposed were disproportionate when compared with those received by a co-offender (the parity ground).
  • Whether the sentencing judge erred in treating the appellant's prior criminal record as a statutory aggravating factor, contrary to established common law principles preserved by s 21A(4) of the Crimes (Sentencing Procedure) Act 1999.

Decision

On the parole condition ground, the Court accepted that a sentencing judge has no power to impose conditions on parole for a sentence exceeding three years. However, the Court found that the judge's remarks, which used the word "advise," were intended as a recommendation only, not a binding condition. Exchanges between the judge and counsel at the sentencing hearing confirmed that interpretation, and the ground was ultimately not pressed.

On the parity ground, the Court found no error. The co-offender had a less serious criminal record and was placed in different sentencing circumstances, justifying any disparity in the sentences ultimately imposed. The Court was not persuaded that any difference in the sentences produced a justifiable sense of grievance.

The prior convictions ground raised a more substantive issue. The Court acknowledged that the sentencing judge had technically erred: under s 21A(4) of the Crimes (Sentencing Procedure) Act 1999, a court cannot treat prior convictions as a statutory aggravating factor if doing so would be contrary to a rule of law, including common law principles. As affirmed in Veen v The Queen (No 2), prior convictions do not aggravate an offence at common law but may properly deprive an offender of leniency or justify greater weight being given to retribution, deterrence, and community protection. The sentencing judge had not articulated which of these permitted uses he had made of the record.

Nonetheless, the Court declined to intervene. Given the appellant's extensive history of similar offending, the fact that he was on parole when committing the second offence, and the Form 1 matters, the Court was satisfied that factors such as retribution, deterrence, and protection of society were properly deserving of greater weight. The Court found it was not persuaded that any other sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912, and dismissed the appeal.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 21A(4) of the Crimes (Sentencing Procedure) Act 1999, a court cannot treat prior convictions as a statutory aggravating factor where doing so would contravene a rule of law, including established common law principles.
  • The common law principle, confirmed in Veen v The Queen (No 2), is that prior convictions do not aggravate an offence itself, but may properly justify reducing leniency or giving greater weight to sentencing considerations such as deterrence, retribution, and community protection.
  • A sentencing error in applying the prior convictions factor will not automatically lead to a successful appeal: where the correct application of the law would have produced the same or a heavier sentence, the Court of Criminal Appeal may decline to intervene under s 6(3) of the Criminal Appeal Act 1912.
  • Remarks made by a sentencing judge about post-release rehabilitation programs must be clearly framed as recommendations, not conditions, particularly where the total sentence exceeds three years and the statutory power to impose parole conditions does not apply.
  • In parity challenges, a co-offender's different criminal history can provide a proper basis for sentencing disparity, provided that difference is genuine and material to the exercise of the sentencing discretion.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 21A(3), 21A(4), 44(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Blair [2005] NSWCCA 78
- R v Campbell [1999] NSWCCA 76
- R v Leete (2001) 125 A Crim R 37
- R v Thompson [2000] NSWCCA 362