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Court of Criminal Appeal 22 November 2005

R v ROBERTS

[2005] NSWCCA 401

Theft & property
CRIMINAL LAW SENTENCING AGGRAVATED BREAK, ENTER AND STEAL S.112(2) CRIMES ACT FLEXIBILITY IN SENTENCING NO ERROR OF LAW

Citation: R v Roberts [2005] NSWCCA 401
Court: NSW Court of Criminal Appeal
Date: 22 November 2005
Judge(s): McClellan CJ at CL, Hislop J, Rothman J

Background

In the early hours of 15 January 2002, the appellant and two co-offenders broke into the Harvey Norman Bathurst Warehouse at Kelso. The group wore balaclavas, carried a pinch bar, and used two-way radios tuned to the same channel. They collected electrical goods on trolleys intending to steal them, but fled when a security guard arrived after an alarm was triggered. One co-offender was shot and apprehended; the appellant and another co-offender escaped in a getaway car and were later arrested by police at Lithgow.

The appellant was convicted of aggravated break, enter and steal under s.112(2) of the Crimes Act 1900 (NSW), the aggravation arising from the offence being committed in company. He maintained his innocence throughout and expressed no contrition. Morgan DCJ in the District Court sentenced him to 4 years imprisonment with a non-parole period of 2 years and 6 months.

The appellant sought leave to appeal, arguing the sentence was manifestly excessive.

  • Whether the sentence of 4 years with a 2.5-year non-parole period was manifestly excessive for aggravated break, enter and steal committed in company
  • Whether the sentence was consistent with parity principles, given a co-offender of equivalent criminality received a lesser sentence after pleading guilty
  • Whether statistical sentencing data indicated the sentence fell outside the available range

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentence imposed by Morgan DCJ.

On the parity issue, the sentencing judge had found the appellant's criminality to be equivalent to that of co-offender Patterson. Patterson had pleaded guilty, expressed contrition, and received 3 years and 3 months with a non-parole period of 2 years, after a 15% guilty plea discount was applied to an original head sentence of 4 years. The Court found that the appellant, having contested the charges, maintained his innocence, and expressed no contrition, was appropriately sentenced to the same 4-year head sentence without that discount.

The Court acknowledged that statistical evidence on sentences for comparable offences can be relevant but cautioned that it must not be applied so rigidly as to constrain the flexibility that sentencing inherently requires. In this case, the statistical material did not indicate the sentence was outside the available range, and the appellant's prior offending involving similar criminal activity supported a stern response.

Applying the principles from House v The King, the Court found no identifiable error in the exercise of the sentencing discretion. The sentence was neither manifestly excessive nor inconsistent with the applicable statutory regime.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's discretion will not be interfered with unless the principles in House v The King are satisfied, meaning identifiable error must be shown.
  • A guilty plea discount applied to a co-offender's sentence does not automatically entitle a convicted-after-trial offender to a lower head sentence; the comparison must account for the absence of a guilty plea and any lack of contrition.
  • Parity in sentencing is assessed by reference to the underlying criminality, not simply the final sentence figure, particularly where co-offenders differ in their pleas and expressions of remorse.
  • Statistical sentencing data may be considered on a sentence appeal, but the Court reiterated that such data cannot be applied so strictly as to eliminate the necessary flexibility in the sentencing exercise.
  • Quoting Johnson v The Queen (2004) 78 ALJR 616, the Court affirmed that first-instance judges should be allowed as much flexibility in sentencing as is consonant with consistency of approach and the relevant statutory regime.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s.112(2) (aggravated break, enter and steal)

Cases
- Johnson v The Queen (2004) 78 ALJR 616
- House v The King (cited for the principles governing appellate interference with sentencing discretion)