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Court of Criminal Appeal 17 August 2006

REGINA v VAN DE HAAR

[2006] NSWCCA 251

Theft & propertyFirearms & weaponsPublic order & justice offences
SENTENCE APPEAL NO QUESTION OF LAW RAISED

Citation: Regina v Van De Haar [2006] NSWCCA 251
Court: NSW Court of Criminal Appeal
Date: 17 August 2006
Judge(s): Sully J, Adams J

Background

The applicant was sentenced in the District Court on 3 March 2005 following guilty pleas to eight counts spanning break and enter offences and one count of threatening police with a syringe to prevent lawful arrest. The offending spanned several years and included incidents committed while the applicant was on parole and while on bail for other matters.

The most serious offence involved the applicant approaching plain-clothes police with two uncapped syringes held at chest height, advancing to within one metre before leaving the premises and evading arrest for approximately one month. Three of the break and enter charges attracted a maximum penalty of fourteen years due to their aggravated nature.

The applicant sought leave to appeal against the sentences, arguing several grounds including that the learned sentencing judge failed to properly differentiate between the maximum penalties for aggravated and non-aggravated break and enter offences, that a calculation error in pre-sentence custody had occurred, and that fresh evidence about the applicant's psychological condition and custodial circumstances warranted a reduction in the non-parole period.

  • Whether the sentencing judge erred by failing to give adequate weight to the difference in maximum penalties between aggravated break and enter (14 years) and break and enter with intent (10 years)
  • Whether the applicant's period of pre-sentence custody had been correctly calculated, and whether a 25-day discrepancy warranted an adjustment
  • Whether fresh evidence concerning the applicant's psychological wellbeing in protective custody, and his separation from family, constituted special circumstances justifying a reduction in the non-parole period
  • Whether the overall sentence was manifestly excessive given the partial accumulation of individual sentences and the concurrency already extended to the applicant

Decision

Adams J (Sully J agreeing) found no error in the sentencing judge's approach to the aggravated break and enter offences. Although those offences carried a higher maximum penalty, the judge had found that the aggravating circumstances were not particularly serious in the individual cases, an approach the Court of Criminal Appeal regarded as significantly beneficial to the applicant. The complaint about maximum penalty differentiation was therefore dismissed.

On the question of the guilty plea discount, the Court noted that the 25 per cent utilitarian discount afforded to the applicant was generous, particularly given that the police record of interview revealed little useful information had in fact been volunteered. No complaint had been formally pressed on this point and no error was established.

The Court accepted that there was an agreed error in the calculation of pre-sentence custody amounting to 25 days. To correct this, the sentence on count 8 was adjusted to commence on 8 January 2007 rather than the date originally set.

The Court declined to reduce the non-parole period on the basis of the fresh psychological evidence or the applicant's separation from his partner, children, and father as a consequence of protective custody arrangements. Adams J found that the overall leniency already extended by the sentencing judge was considerable and that a further reduction would produce a sentence not warranted in law. Instead, the Court made a recommendation, not an order, that Corrective Services endeavour to place the applicant in protective custody closer to the Sydney metropolitan area to facilitate family contact and support his rehabilitation.

Orders Made

  • Leave to appeal granted
  • The sentence on count 8 varied to commence on 8 January 2007
  • Otherwise the appeal dismissed
  • The Registrar directed to forward a copy of the judgment to the Commissioner for Corrective Services, drawing attention to the Court's recommendation regarding placement in protective custody closer to Sydney

Key Takeaways

  • In dismissing most of the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's finding that aggravating circumstances were not particularly serious, even where a higher statutory maximum applied, will not readily be disturbed on appeal if it operated in the offender's favour and no demonstrable error is shown.
  • A calculation error in pre-sentence custody, even one agreed to be only 25 days, will attract a correction to the commencement date of the relevant sentence.
  • Fresh evidence of an offender's psychological vulnerability and the incidental hardship of protective custody did not, in the circumstances of this case, constitute special circumstances sufficient to reduce the non-parole period where the existing sentence structure was already highly favourable to the applicant.
  • Where a reduction in non-parole period is not justified, the Court of Criminal Appeal may nonetheless make a non-binding recommendation to Corrective Services about prison placement to support rehabilitation and family contact.
  • The extent of concurrency already granted, together with a generous guilty plea discount, were factors the Court weighed against further leniency when assessing the overall sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33B(1)(a) (threatening use of offensive weapon to prevent lawful apprehension)
- Crimes Act 1900 (NSW), s 112(1) (break enter and steal)
- Crimes Act 1900 (NSW), s 113(1) (break and enter with intent to steal)

Cases:
- R v Way [2004] NSWCCA 131; 60 NSWLR 168