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Court of Criminal Appeal 22 May 2006

McCabe v Regina

[2006] NSWCCA 160

Also reported as 162 A Crim R 166
DrugsTheft & property
CRIMINAL LAW SENTENCING APPEAL AGAINST SEVERITY SENTENCING AGGRAVATING FACTORS NOT AN AGGRAVATING FACTOR

Citation: McCabe v Regina [2006] NSWCCA 160
Court: NSW Court of Criminal Appeal
Date: 22 May 2006
Judge(s): Beazley JA

Background

The appellant pleaded guilty to a range of indictable and summary offences, including multiple counts of break, enter and steal, and was accepted into a Drug Court rehabilitation programme. Initial sentences were imposed but suspended for the duration of the programme. The programme was terminated in August 2004 due to the appellant's non-compliance.

The appellant then came before the Drug Court for the imposition of final sentences under s.12 of the Drug Court Act 1998 (NSW), as well as for sentencing on further offences committed both during and after the programme. A series of seven break, enter and steal offences had been committed over four days at separate units within a single residential block.

The appellant appealed against the severity of the final sentences under s.5AF of the Criminal Appeal Act 1912 (NSW), arguing that the sentencing judge had made errors in applying aggravating factors, including the treatment of multiple victims and prior convictions.

  • Whether break, enter and steal offences committed at multiple units within one residential block constituted offences involving "a series of criminal acts" with "multiple victims" so as to attract an aggravating factor under s.21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentencing judge erred in treating the appellant's prior record as comprising "prior like offences" given the nature of those prior offences
  • Whether prior convictions were properly treated as an aggravating factor in sentencing
  • Whether the Court of Criminal Appeal should re-sentence the appellant after identifying errors by the sentencing judge, or instead confirm the original sentences

Decision

Multiple victims and series of criminal acts: Beazley JA held that the break, enter and steal offences committed at the unit block did not involve "multiple victims" as an aggravating factor within the meaning of s.21A(2)(m). The multiplicity of victims and acts was simply a feature of the multiplicity of offences, and treating it as a separate aggravating factor would amount to double-counting. The Court followed R v Tadrosse [2005] NSWCCA 145 on this point. The first ground of appeal was therefore upheld.

Prior like offences: The sentencing judge was entitled to take prior like offences into account as a factor that enhanced the seriousness of the offending. Although the appellant had no prior convictions for break, enter and steal before the offences dealt with by the Drug Court, the judge's reference to "prior like offences" was accurate when read as a reference to the break, enter and steal offences dealt with separately from those subject to the Drug Court programme. Beazley JA found no appellable error on this ground, following R v Ponfield (1999) 48 NSWLR 327.

Prior convictions as aggravating factor: Beazley JA accepted the appellant's third ground of appeal. The list of aggravating factors in s.21A of the Crimes (Sentencing Procedure) Act 1999 is subject to the rule of law under s.21A(4), meaning prior convictions are not automatically an aggravating factor. The prior convictions in this case did not heighten the significance of retribution, deterrence, or the protection of society, and the sentencing judge erred in treating them as aggravating. The Court followed Ryan v The Queen (2001) 206 CLR 267, R v McQueeney [2005] NSWCCA 168, and R v Blair [2005] NSWCCA 78.

Re-sentencing: Although errors in sentencing principle were established, Beazley JA declined to re-sentence the appellant. The Court noted the sentencing judge had also failed to properly consider questions of cumulation versus concurrence across the thirteen concurrent sentences, as required by Pearce v The Queen (1998) 194 CLR 610. Even so, Beazley JA considered the sentences already imposed were at the very least extremely lenient, and possibly inadequate. Because the sentences were not, in any event, excessive, the Court confirmed them rather than imposing fresh sentences.

Orders Made

  • Appeal allowed
  • Sentences imposed on the appellant on 8 March 2005 confirmed

Key Takeaways

  • Where multiple break, enter and steal offences are charged separately, the multiplicity of victims and criminal acts is a feature of the multiplicity of offences, not an independent aggravating factor under s.21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999.
  • Prior convictions are not automatically an aggravating factor under the Crimes (Sentencing Procedure) Act 1999. The rule of law in s.21A(4) requires that additional circumstances be satisfied before prior convictions may properly be treated as aggravating the sentence.
  • A sentencing judge may take prior like offences into account as a factor increasing the seriousness of offending, but the description "prior like offences" must accurately reflect the nature of the relevant record.
  • The Court of Criminal Appeal confirmed that it may uphold a sentence notwithstanding identified errors in the sentencing judge's reasoning, where the sentence imposed was not excessive in any event, following R v Astill and R v Cocking.
  • Under Pearce v The Queen, a sentencing judge dealing with multiple offences must fix an appropriate sentence for each offence and then separately consider whether the sentences should be served concurrently, partially accumulated, or fully accumulated.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss.3A, 4, 8A, 21A, 33
- Crimes Act 1900 (NSW), s.112(1)
- Criminal Appeal Act 1912 (NSW), ss.5AA, 5AF
- Drug Court Act 1998 (NSW), ss.5, 6, 7, 12, 24

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Astill (1992) 64 A Crim R 148
- R v Blair [2005] NSWCCA 78
- R v Cocking [1999] NSWCCA 311
- R v Crombie [1999] NSWCA 297
- R v McQueeney [2005] NSWCCA 168
- R v Ponfield (1999) 48 NSWLR 327
- R v Rice (2004) 150 A Crim R 37
- R v Tadrosse [2005] NSWCCA 145
- Ryan v The Queen (2001) 206 CLR 267