Citation: Regina v Scott [2005] NSWCCA 51
Court: NSW Court of Criminal Appeal
Date: 1 March 2005
Judge(s): Bryson JA, Barr J, Hoeben J
Background
The applicant pleaded guilty in the District Court to four counts of stealing a motor vehicle under s 154AA(1) of the Crimes Act 1900, each carrying a maximum penalty of 10 years imprisonment. The offences occurred between March and May 2003. On each occasion, the applicant dressed in business attire, presented a driver's licence bearing a false name and her own photograph, and attended a luxury car dealership under the pretence of a test drive before failing to return the vehicle. The stolen vehicles were worth between $60,000 and $88,900 each.
Two of the vehicles were passed to the applicant's de facto partner, who used them in a "rebirthing" scheme, swapping parts from stolen vehicles into damaged ones of the same make to produce apparently undamaged cars. The remaining two vehicles were not recovered. The applicant was arrested in July 2003 while travelling as a passenger in a rebirthed Peugeot, one of the stolen vehicles.
District Court Judge Delaney sentenced the applicant to a total of 3 years and 9 months imprisonment, with a non-parole period of 2 years and 9 months, by partially accumulating four 18-month terms. The applicant sought leave to appeal against that sentence.
Legal Issues
- Whether the sentencing judge erred by placing too much weight on the objective seriousness of the offences
- Whether the sentencing judge erred in his treatment of the applicant's subjective features, including post-natal depression and other personal circumstances
- Whether the sentencing judge erred in finding that full-time imprisonment was the only appropriate penalty
- Whether the sentences should have been ordered to run concurrently rather than be partially accumulated
Decision
On objective seriousness, the Court of Criminal Appeal found no error. The sentencing judge had thoroughly analysed the evidence and was entitled to characterise the offending as involving planning, deliberation, and persistence. The applicant's method, using a false identity, dressing to inspire trust, and waiting patiently for an opportunity to take each vehicle alone, justified the finding of significant objective seriousness.
On subjective features, the sentencing judge had expressly considered the applicant's age, financial difficulties, cannabis use, the birth of her child, and the claimed post-natal depression. The Court found no error in the conclusion that the sophisticated and methodical nature of the offending was inconsistent with any claim that the applicant was unable to think rationally or was significantly impaired at the time.
On the question of full-time imprisonment, the Court confirmed that a sentencing judge is not bound by any concession made by the Crown during proceedings. The sentencing judge had considered alternatives to full-time custody and rejected them with clear reasoning. No error was demonstrated.
On accumulation versus concurrency, the Court rejected the submission that a shared modus operandi required concurrent sentences. Each offence occurred on a different date and harmed a different victim. The sentencing judge's partial accumulation of the terms was reasoned and open to him. The fact that two months had passed between the last offence and the applicant's arrest did not establish that rehabilitation had been achieved or that the offending would not have continued.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A shared modus operandi across multiple offences does not, of itself, require that sentences be served concurrently. Where each offence occurred on a different occasion and caused harm to a different victim, partial or full accumulation remains available to the sentencing court.
- No error was established in treating the deliberate, methodical, and deceptive character of the offending as relevant to objective seriousness under s 154AA(1) of the Crimes Act 1900.
- A sentencing judge is not bound by concessions made by the Crown during the course of sentencing submissions, including any suggestion that a non-custodial sentence would not constitute appealable error.
- In dismissing the appeal, the Court of Criminal Appeal reaffirmed its role as a court of error, not a court of rehearing. Intervention requires a demonstrated error; disagreement with the sentence as a matter of degree is insufficient.
- Where an offender's claimed psychological condition is contradicted by evidence of organised and rational conduct during the offending, a sentencing court is entitled to give that condition limited mitigatory weight.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 154AA(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Pearce (1998) 194 CLR 610
- R v Wheeler [2000] NSWCCA 34