Citation: Rich v Regina [2007] NSWCCA 193
Court: New South Wales Court of Criminal Appeal
Date: 5 July 2007
Judge(s): Giles JA; James J; Hislop J
Background
The appellant was a 27-year-old woman with an extensive criminal record dating back to 1996, encompassing car theft, shoplifting, deception offences, and break and enter. She pleaded guilty to two charges of break, enter and steal and one charge of obtaining a benefit by deception. A further seven offences (four break and enter charges and three deception charges) were placed on a Form 1, meaning they were acknowledged and taken into account at sentencing without being separately convicted.
The offences occurred primarily in September and October 2005, involving forced entry into residential homes across Sydney's inner west and south-west. Property and cash worth nearly $18,000 in total was stolen. The appellant committed these offences while on parole and was a long-term heroin user who funded her addiction through the offending.
On 31 October 2006, the District Court sentenced her to an overall non-parole period of five years and a balance of term of eight years. She sought leave to appeal against that sentence on four grounds.
Legal Issues
- Whether the sentencing judge erred in finding the offences formed part of a "planned or organised criminal activity" and treating that as an aggravating factor
- Whether the judge erred in limiting the weight given to the appellant's status as a parent with children
- Whether the judge erred in the treatment of the Form 1 offences when structuring the sentences
- Whether the sentences imposed were manifestly excessive
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed all four grounds.
On the first ground, the Court accepted that the pattern of repeated break and enter offences, using various methods to gain entry across multiple locations and over a defined period, supported a finding of planned or organised criminal activity within the meaning of s 21A(2)(n) of the Crimes (Sentencing Procedure) Act. No error was identified in the sentencing judge's application of that aggravating factor.
On the parental status ground, the Court found no error in the weight the sentencing judge assigned to the appellant having children. The judge had acknowledged this as a relevant factor but was entitled to limit its mitigating weight in the context of her overall circumstances and criminal history.
On the Form 1 ground and the question of manifest excess, the Court compared the sentences to comparable cases and to Judicial Commission statistics. It acknowledged the offences were serious intrusions into private homes, that personal and general deterrence carried significant weight, and that the appellant had shown no contrition beyond the utilitarian value of her guilty pleas. The Court concluded the sentences were not lenient, but fell within the range open to the sentencing judge.
Orders Made
- Leave to appeal against sentence granted
- Appeal dismissed
Key Takeaways
- A pattern of repeated residential break and enter offences, carried out using deliberate methods across multiple locations within a defined period, can properly support a finding of planned or organised criminal activity as an aggravating factor under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act.
- Parental status is a recognised consideration in sentencing, but a sentencing court is entitled to limit its mitigating weight in light of the offender's full circumstances and criminal history.
- Form 1 offences taken into account at sentencing do not produce a separate sentence; the Court confirmed there was no error in how the sentencing judge structured the overall sentences with those additional matters in view.
- No error was established in any of the four grounds advanced, and the Court of Criminal Appeal confirmed that sentences within the range open to a sentencing judge will not be disturbed on appeal merely because they are not lenient.
- In dismissing the appeal, the Court emphasised the relevance of both personal deterrence and community protection where an offender has persisted in offending across many years despite prior opportunities to reform.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(n)
Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Re Attorney General's Application (No 1) under s 26 of the Criminal Procedure Act; R v Ponfield (1999) 48 NSWLR 327
- Fahs v R [2007] NSWCCA 26
- R v Argent [2004] NSWCCA 270
- R v Danaca [2005] NSWCCA 45
- R v Edwards (1996) 90 A Crim R 510
- R v Girard [2004] NSWCCA 170
- R v Lay [2006] NSWCCA 45
- R v Muir [1999] NSWCCA 71
- R v Tarpey [2001] NSWCCA 300
- R v X [2004] NSWCCA 93