Citation: Regina v MacBain [2005] NSWCCA 358
Court: New South Wales Court of Criminal Appeal
Date: 20 October 2005
Judge(s): Spigelman CJ, McClellan CJ at CL, Hall J
Background
The appellant pleaded guilty in the Central Local Court to two charges of break, enter and steal under s 112(1) of the Crimes Act 1900 (NSW), each carrying a maximum penalty of 14 years imprisonment. The first offence involved the theft of tools and a television from commercial premises in June 2001. The second, more serious offence occurred in April 2004 and involved ransacking a private home and stealing jewellery and other property valued at approximately $15,700.
Seven additional offences arising from a police pursuit on 8 May 2004, including driving a stolen vehicle, possessing amphetamines, and resisting police, were placed on a Form 1 (a procedural mechanism under which additional charges are taken into account when sentencing, without attracting separate penalties). The appellant had been in continuous custody from 8 May 2004. His parole from an earlier sentence was subsequently revoked because of the April 2004 offence.
The District Court sentenced the appellant to concurrent terms totalling five years and three months, with a non-parole period of three years, but backdated both sentences only to 15 July 2004 rather than to 8 May 2004, when he was first taken into custody. The appellant sought leave to appeal on two grounds: that the failure to backdate to 8 May 2004 constituted double punishment, and that the sentence for count 2 was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred by commencing both sentences from 15 July 2004 rather than 8 May 2004, the date the appellant entered pre-sentence custody, given that his parole was revoked as a consequence of committing the offences charged.
- Whether the sentence of five years and three months for count 2 was manifestly excessive in all the circumstances, including the absence of certain aggravating features and the failure to separately identify remorse as a mitigating factor.
Decision
On the first ground, the Court of Criminal Appeal found error. The Crown conceded the point. Because the appellant's parole was revoked specifically as a result of the offences for which he was being sentenced, failing to backdate the sentences to 8 May 2004 effectively required him to serve time in custody twice over for the same conduct. Established authority confirms that pre-sentence custody should ordinarily be accounted for in the commencement date of the sentence, and the Court accepted that no good reason existed here for departing from that principle.
On the second ground, the Court rejected the submission that the sentence was manifestly excessive. The sentencing judge had already applied a 25 percent discount for the utilitarian value of the early guilty plea, and the Court found it was open to treat that plea as motivated by the advantages of the discount rather than as reflecting genuine remorse. Accordingly, the failure to separately identify remorse as a mitigating factor did not constitute error.
The Court also accepted the sentencing judge's characterisation of the appellant's personal circumstances as a prolonged pattern of drug abuse and criminal offending spanning 18 years. Against that background, any attempt to isolate the appellant's claimed contrition as a distinct sentencing factor would, in the Court's view, have been artificial. The overall sentence for count 2 was not found to fall outside the available range.
Orders Made
- Leave to appeal granted.
- Appeal allowed in part: the commencement date of each sentence corrected to 8 May 2004; appeal otherwise dismissed.
- Count 1: two years and six months imprisonment commencing 8 May 2004, with a non-parole period of one year expiring 7 May 2005.
- Count 2: five years and three months imprisonment commencing 8 May 2004, with a non-parole period of three years expiring 7 May 2007.
- Both sentences to run concurrently; the appellant eligible for parole on 7 May 2007.
Key Takeaways
- Where an offender's parole is revoked as a direct consequence of the offences being sentenced, commencing the new sentence from a date after the actual start of pre-sentence custody may constitute impermissible double punishment.
- The Court of Criminal Appeal confirmed that established authority supports backdating sentences to the commencement of pre-sentence custody, absent good reason to depart from that approach.
- A 25 percent discount for a utilitarian guilty plea does not automatically require a sentencing judge to also separately identify remorse as a mitigating factor; the two can be treated as connected where the evidence of genuine contrition is not sufficiently distinct.
- Under the instinctive synthesis approach to sentencing, artificially separating out claimed contrition as a discrete factor may be inappropriate where the offender's background presents a long-standing pattern of offending and drug dependence.
- In dismissing the manifest excess ground, the Court affirmed that the five-year-three-month sentence for a serious residential break and enter, committed while on parole and accompanied by Form 1 matters, was within the available sentencing range.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Regina v Kitchener [2003] NSWCCA 134
- Regina v Kaiva (NSWCCA, unreported, 9 November 1998)
- Regina v Walker [2004] NSWCCA 230
- Regina v McHugh (1985) 1 NSWLR 588
- Regina v Deeble (NSWCCA, unreported, 19 September 1991)
- Regina v Newman & Simpson (2004) 145 A Crim R 361
- Ponfield (1999) 48 NSWLR 327
- Veen v The Queen (No 2) (1987-88) 164 CLR 465
- DPP v Ottewell [1970] AC 642
- Johnstone [2005] NSWSC 80
- Gallagher (1981) 23 NSWLR 220
- Markarian v The Queen (2005) 79 ALJR 1048
- H [2005] NSWCCA 282
- Saleib [2005] NSWCCA 85
- Regina v Thomson & Houlton (2000) 49 NSWLR 383