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21
Court of Criminal Appeal 13 October 2005

REGINA v. PALMER

[2005] NSWCCA 349

Theft & property

Citation: Regina v Palmer [2005] NSWCCA 349
Court: NSW Court of Criminal Appeal
Date: 13 October 2005
Judge(s): Hall J, Grove J, Smart AJ

Background

The appellant was sentenced in the District Court at Gosford by English DCJ on 17 November 2004, following guilty pleas to four offences: break, enter and steal at a café; larceny of mobile phones from a car; taking and driving a conveyance; and possessing an implement capable of being used to enter and drive a conveyance. Four additional matters were taken into account on two Form 1 documents. The offences were committed across March 2004, with the DNA evidence linking the appellant to the café break-in identified through a notification file in July 2004.

The appellant received an effective sentence of five years and six months imprisonment, with a non-parole period of three years. He sought leave to appeal, arguing that the sentencing judge had made two specific errors in how the sentence was constructed and reasoned.

  • Whether the sentencing judge erred by failing to take into account that all four offences were capable of being dealt with summarily rather than on indictment, which would have attracted lower maximum penalties.
  • Whether the sentencing judge erred in treating the appellant's criminal history as an aggravating feature of the offences themselves, rather than applying it only for the purposes of retribution, deterrence, and community protection.

Decision

On the first ground, the Court noted that the capacity for summary disposal of an indictable offence is a factor that a sentencing judge ought to consider, as it affects the sentencing range available. However, after reviewing the sentencing remarks, the Court was not persuaded that the sentencing judge had overlooked this consideration or that it had produced any material error in the sentences ultimately imposed, given the objective seriousness of the conduct involved.

On the second ground, Hall J accepted that the sentencing remarks contained a passage in which the criminal history appeared to be characterised as aggravating the seriousness of the offences themselves. This constituted an error, because under the principles established in Veen (No. 2), criminal history may inform the purposes of sentencing (retribution, deterrence, and protection of society) but does not increase the objective gravity of the offence. The relevant principle is that prior offending raises the ceiling of the available sentence for those purposes, not the floor based on the offence's own objective features.

Despite identifying this error, the Court held that it was not one of sufficient significance to warrant intervention. The sentencing judge had separately and correctly referred to the criminal history earlier in the sentencing remarks, and the overall sentences were appropriate having regard to the totality of the circumstances, the nature of the offences, and the appellant's repeated similar offending. The Court was not satisfied that some other, less severe sentence was "warranted in law" within the meaning of s 6(3) of the Criminal Appeal Act 1912.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under the principles in Veen (No. 2), a sentencing court may have regard to an offender's criminal history when assessing retribution, deterrence, and community protection, but that history does not increase the objective seriousness of the offence itself.
  • Where a sentencing judge characterises criminal history as an aggravating feature of the offence rather than a factor bearing on the purposes of punishment, that treatment constitutes an error of principle.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an identified sentencing error will not justify intervention unless the appellant demonstrates that some other sentence was "warranted in law" under s 6(3) of the Criminal Appeal Act 1912.
  • The capacity for summary disposal of an indictable offence is a relevant sentencing consideration, reflecting the lower maximum penalties that would have applied in that jurisdiction.
  • No error of sufficient significance was established on either ground to displace the sentence imposed, particularly where the sentencing judge had otherwise correctly engaged with the relevant material.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 3, Part 3
- Criminal Procedure Act 1986 (NSW), s 260 and Schedule 1, Tables 1 and 2
- Crimes Act 1900 (NSW), ss 112(1), 114(1)(b), 117, 165(1)(a)

Cases:
- Regina v Simpson (2001) 53 NSWLR 704
- Veen v The Queen (No. 2) (1988) 164 CLR 465
- Regina v Crombie [1999] NSWCCA 297
- Regina v LPY (2002) 136 A Crim R 237
- Regina v El Masri [2005] NSWCCA 167
- Regina v Doan (2000) 50 NSWLR 115
- Regina v Depoma [2003] NSWCCA 382
- Regina v Walker [2005] NSWCCA 109