AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 24 May 2007

Campbell v Regina

[2007] NSWCCA 137

Theft & property
CRIMINAL LAW SENTENCE ELLIS DISCOUNT SENTENCE NOT MANIFESTLY EXCESSIVE.

Citation: Campbell v Regina [2007] NSWCCA 137
Court: New South Wales Court of Criminal Appeal
Date: 24 May 2007
Judge(s): McClellan CJ at CL, Hulme J, Hislop J

Background

The appellant pleaded guilty in the District Court to six counts of break, enter and steal and one count of receiving and disposing of stolen property. The offences occurred across a three-month period in early 2005 and involved a pattern of targeting unoccupied suburban houses, breaking in, and quickly pawning the stolen goods. A further 18 items were taken into account on a Form 1.

The sentencing judge imposed an aggregate sentence of five years and six months, with a non-parole period of three years and six months. Individual sentences for the various counts ran partly concurrently, meaning several counts effectively attracted no additional punishment beyond what was imposed for the two principal counts.

The appellant, a recidivist offender with an extensive criminal history dating back to 1991, sought leave to appeal on two grounds: first, that the sentencing judge gave insufficient weight to his voluntary disclosure of guilt (the so-called Ellis discount), and second, that the sentences were manifestly excessive.

  • Whether the sentencing judge failed to apply or apply sufficiently the principle in R v Ellis (1986), which provides for a sentencing discount where an offender voluntarily discloses guilt that was unlikely to have been discovered otherwise.
  • Whether the sentences imposed were manifestly excessive, having regard to the objective gravity of the offences and the offender's subjective circumstances.

Decision

On the Ellis ground, Hislop J (with whom the other judges agreed) found that the sentencing judge had, in fact, applied an Ellis discount. The judge acknowledged the principle and afforded the appellant leniency on that basis. No error was established.

On manifest excess, Hislop J examined the applicable range by reference to a table of comparable break, enter and steal cases submitted by the appellant. The Court found the sentencing range in such matters to be very broad and that the sentences imposed were within the legitimate range open to the sentencing judge. The sentencing remarks provided ample justification for the penalties imposed.

Hislop J reiterated that the Court of Criminal Appeal is a court of error and will interfere with a sentence only if error is shown and the court forms a positive opinion that a less severe sentence was warranted in law. Neither condition was satisfied here.

Hulme J added a pointed observation in separate reasons. The degree of concurrency in the sentences effectively meant the appellant received no additional punishment for five of the seven offences charged. His Honour described this as "completely unjustified" and characterised the overall sentence as "extraordinarily lenient," noting that the Crown had not appealed. Hulme J expressed concern that such sentencing patterns communicate to repeat offenders that further offending attracts little further consequence, and referred to the Court's recent decision in Harris v R as guidance against repeating such patterns.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that an Ellis discount requires genuine voluntary disclosure of guilt that was unlikely to have been established without the offender's own admission. Where a sentencing judge has in fact applied that principle, no error arises merely because the appellant contends insufficient weight was given to it.
  • In dismissing the appeal, the Court reaffirmed that it will only interfere with a sentence where error is demonstrated and the court forms a positive view that a less severe sentence was warranted in law.
  • A broad sentencing range for break, enter and steal offences means that comparative case tables, while legitimate tools, cannot alone establish that a sentence falls outside the permissible range.
  • Hulme J's separate reasons drew attention to the problematic use of extensive concurrency in sentencing recidivist offenders: where multiple offences result in no meaningful additional penalty, principles of general deterrence, personal deterrence, retribution and community protection may be inadequately served.
  • The decision does not disturb the sentences imposed but signals judicial concern, consistent with Harris v R, about patterns of concurrency that effectively render numerous offences punishment-free for prolific offenders.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(1), 188(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Ellis (1986) 6 NSWLR 603
- Harris v R [2007] NSWCCA 130
- Veen v R (No 2) (1987-1988) 164 CLR 465
- R v Simpson (2001) 53 NSWLR 704
- R v Bloomfield (1998) 44 NSWLR 734
- Wong v R (2001) 207 CLR 584
- Markarian v R (2005) 215 ALR 213
- Dinsdale v The Queen (2000) 202 CLR 321
- R v Dodd (1991) 57 A Crim R 349
- Ryan v The Queen (2001) 206 CLR 267