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Court of Criminal Appeal 7 March 2005

Regina v Danuca

[2005] NSWCCA 45

Theft & property

Citation: Regina v Danuca [2005] NSWCCA 45
Court: NSW Court of Criminal Appeal
Date: 7 March 2005
Judge(s): Grove J, Bell J, Buddin J

Background

The applicant pleaded guilty in the Sydney District Court to seven counts of breaking, entering and stealing under s 112(1) of the Crimes Act 1900, with a further eleven offences taken into account on Form 1 documents. The offences involved a series of sophisticated residential break-ins in affluent Sydney suburbs, targeting portable safes. Stolen property ranged from modest amounts to jewellery and cash valued at over $600,000 in one instance.

The applicant had been sentenced by O'Reilly DCJ on 19 December 2003 to an aggregate of eight years' imprisonment with an effective non-parole period of six years and six months. The sentencing judge found special circumstances justifying a departure from the statutory proportion between head sentence and non-parole period, but the structure of the sentences as imposed did not actually give effect to that finding.

The applicant sought leave to appeal on the ground that the sentences were excessive, arguing that the disproportion between the non-parole period and the head sentence undermined the sentencing judge's own stated intention.

  • Whether the sentences as structured gave effect to the sentencing judge's finding of special circumstances and consequent intention to depart from the statutory proportion between head sentence and non-parole period
  • Whether the aggregate non-parole period was excessive given the applicant's personal circumstances, including traumatic experiences in Kosovo and his need for psychiatric rehabilitation upon release
  • Whether the Court of Criminal Appeal should resentence the applicant in a way that carried out the sentencing judge's plain intention

Decision

Bell J (with Grove J and Buddin J agreeing) found that the sentences imposed by O'Reilly DCJ did not implement his Honour's finding of special circumstances. Although the judge had identified special circumstances and intended a departure from the statutory proportion, the structure of the sentences resulted in an effective non-parole period of six years and six months out of an eight-year aggregate. That proportion was inconsistent with his Honour's stated intention.

The Court accepted that the applicant's background warranted recognition of special circumstances. The evidence of traumatic events in Kosovo, both experienced directly and through adverse effects on his family, was found likely to have caused psychological injury. The Court accepted the need for psychiatric or other counselling upon release, noting also that the applicant was being held as a protection prisoner following an assault while in custody.

Bell J emphasised that the departure from the statutory proportion could not be great, given that the non-parole period must still reflect the objective criminality of the offences. The offending was characterised as a serious and sophisticated course of criminal conduct, with several aggravating features identified in the guideline judgment in R v Ponfield. The Court resentenced the applicant to an aggregate of eight years' imprisonment with an effective non-parole period of five years and six months.

Grove J added that his concurrence was grounded in implementing the sentencing judge's plain intention regarding proportion, rather than departing from his Honour's factual findings.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; sentences imposed in the District Court quashed
  • Count one (plus four Form 1 matters): six years' imprisonment from 31 May 2002, expiring 30 May 2008; non-parole period of three years and six months, expiring 30 November 2005
  • Counts two to six (including four Form 1 matters for count five): concurrent terms of five years' imprisonment from 31 May 2002, expiring 30 May 2007; non-parole period of three years in each case, expiring 30 May 2005
  • Count seven (plus three Form 1 matters): seven years' imprisonment from 31 May 2003, expiring 30 May 2010; non-parole period of four years and six months, expiring 30 November 2007

Key Takeaways

  • Where a sentencing judge finds special circumstances and states an intention to depart from the statutory proportion between head sentence and non-parole period, the structure of the sentences imposed must actually give effect to that intention. A disconnect between stated intention and the practical outcome of the sentences will be a ground for appellate intervention.
  • The Court of Criminal Appeal confirmed it is appropriate for it to resentence in a way that carries out a sentencing judge's plain intention, rather than simply quashing and remitting, where the factual findings of the sentencing court are not in dispute.
  • A significant and sophisticated course of residential break-and-enter offending, involving repeated targeting of occupied homes and theft of items of high personal and monetary value, will attract objective seriousness findings consistent with guideline principles from R v Ponfield.
  • Evidence of trauma suffered in a conflict zone, and its likely psychological consequences, can support a finding of special circumstances warranting a departure from the standard statutory proportion between the non-parole period and the head sentence.
  • Any departure from the statutory proportion remains constrained by the requirement that the non-parole period must still adequately reflect the objective criminality of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v Bala [2004] NSWCCA 345
- R v Engert (1995) 84 A Crim R 67
- R v Ponfield (1999) 48 NSWLR 327
- R v Simpson [2001] 52 NSWLR 704
- R v Wright (1997) 93 A Crim R 48