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41
Court of Criminal Appeal 14 May 2007

R v HARRIS

[2007] NSWCCA 130

Also reported as (2007) 171 A Crim R 267
Theft & property

Citation: R v Harris [2007] NSWCCA 130
Court: NSW Court of Criminal Appeal
Date: 14 May 2007
Judge(s): McClellan CJ at CL, Hulme J, Hislop J

Background

The Crown appealed against sentences imposed by Hughes DCJ in the District Court on 24 October 2006 on the ground of manifest inadequacy. The respondent had been sentenced for two counts of aggravated break, enter and steal at adjoining Earlwood premises, and one count of taking and driving a conveyance without the owner's consent. The effective total sentence was a non-parole period of 12 months followed by a balance of term of 10 months, all commencing 30 May 2006.

The respondent had committed the break and enter offences while on parole for earlier offences, and was also on bail at the time in relation to the taking and driving charge. Two additional matters were placed on a Form 1 (meaning they were taken into account at sentencing without separate conviction), including a further aggravated break, enter and steal at a separate Earlwood address. The respondent had an extensive criminal history, including prior convictions for dishonesty offences, robbery, and property offences, with several earlier terms of imprisonment.

The sentencing judge had started at a base of three years and reduced that figure by approximately 25 per cent for the guilty pleas and a further approximately 15 per cent for assistance provided by the respondent to authorities. The respondent's co-offender received a non-parole period of 15 months.

  • Whether the sentences imposed by the District Court were manifestly inadequate, warranting intervention by the Court of Criminal Appeal
  • The appropriate total sentence and structure given the respondent's criminal history, the standard non-parole period applicable to aggravated break, enter and steal under the Crimes (Sentencing Procedure) Act, the respondent's plea of guilty, his assistance to authorities, and his rehabilitation prospects
  • Whether special circumstances existed to justify altering the ratio between the non-parole period and the balance of term
  • Whether the Court should attach a condition requiring participation in a rehabilitation program

Decision

The Court of Criminal Appeal found that the sentences imposed at first instance were manifestly inadequate. The aggravated break, enter and steal offences carried a maximum penalty of 20 years imprisonment each, and a standard non-parole period of five years applied to that category of offence. The Court noted that the most serious offence, the break, enter and steal at 1 Woolcott Street (which resulted in substantial losses including a rare pen collection), had been placed on a Form 1 rather than charged separately. The Court observed this was a matter of concern, as the most serious conduct should ordinarily be the subject of a principal charge rather than a Form 1 matter.

The Court acknowledged the appropriate reductions available to the respondent: approximately 25 per cent for his guilty pleas and a further reduction for his assistance to police. After applying those discounts from what it regarded as a properly calibrated starting point, the Court concluded the total effective sentence should be four years.

On the question of special circumstances (which allows a court to depart from the standard one-third balance of term in favour of a longer supervision period on parole), the Court found that the respondent's intention to enter the Salvation Army's Bridge rehabilitation program, which runs for 12 months, justified altering the ratio between the non-parole period and the balance of term. This resulted in a non-parole period of two years with a two-year balance of term on the principal count.

The Court considered whether to impose a condition requiring participation in the Bridge Program under section 50 of the Crimes (Sentencing Procedure) Act, but declined to do so. The Court expressed a preference for leaving that decision to the parole authorities closer to the time of the respondent's release, while noting that participation in the program was regarded as very desirable.

Orders Made

  • The appeal was allowed.
  • The sentences imposed by Hughes DCJ on 24 October 2006 were quashed.
  • For taking and driving a conveyance: fixed term of 1 year and 9 months commencing 30 May 2006.
  • For breaking and entering at 3A Undercliffe Lane, Earlwood: fixed term of 2 years commencing 30 May 2006.
  • For breaking and entering at 3B Undercliffe Lane, Earlwood (including Form 1 matters): non-parole period of 2 years commencing 30 May 2006, with a balance of term of 2 years.
  • Parole eligibility date recorded as 30 May 2008.

Key Takeaways

  • The Court of Criminal Appeal confirmed that placing the most serious offence on a Form 1, rather than charging it as a principal count, is a practice to be avoided. Where multiple offences exist, lesser matters are the appropriate candidates for Form 1 treatment.
  • Manifest inadequacy was established where the effective total sentence of 22 months (non-parole period plus balance) fell well short of what the gravity of the offending, the applicable standard non-parole period, and the respondent's extensive criminal history required.
  • Offending committed while on parole and while on bail simultaneously is an aggravating feature that the sentencing court must weigh appropriately in fixing the starting point.
  • Special circumstances justifying an adjusted ratio between the non-parole period and balance of term were found on the basis of a concrete, time-limited rehabilitation program, rather than as a general proposition.
  • Where a court considers attaching a rehabilitation condition to a sentence under section 50 of the Crimes (Sentencing Procedure) Act, it retains discretion to instead leave that matter to the parole authorities, particularly where the timing of release remains some distance away.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2) (aggravated break, enter and steal)
- Crimes Act 1900 (NSW), s 154A (taking and driving a conveyance without consent)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 1A of Part 4 (standard non-parole periods)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50 (conditions on imprisonment)

Note: The judgment does not set out a list of cases cited. No cases are referenced in the portions of the judgment available.