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Court of Criminal Appeal 22 May 2007

SHARPE v R

[2007] NSWCCA 217

Theft & property
CRIMINAL LAW SENTENCE APPEAL FORM 1 MATTERS TAKEN INTO ACCOUNT APPLICANT ON PAROLE AT TIME OF OFFENCES ERROR ACCEPTED BY THE CROWN WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Sharpe v R [2007] NSWCCA 217
Court: NSW Court of Criminal Appeal
Date: 22 May 2007
Judge(s): McClellan CJ at CL, Hislop J, Smart AJ

Background

The applicant pleaded guilty to one count of break and enter with intent to commit a serious indictable offence, contrary to section 113(1) of the Crimes Act 1900, carrying a maximum of 10 years imprisonment. The plea followed the Crown's earlier decision to accept it in substitution for the original charge of aggravated break and enter with intent in company under section 113(2), which carries a maximum of 14 years. At sentencing, three further offences were listed on a Form 1 document and taken into account.

The offences occurred at a garage complex in Darling Point in September 2005. At the time, the applicant had been released on parole just three days earlier in respect of a prior conviction for aggravated break, enter and steal. His parole was subsequently revoked, and the sentence imposed by the District Court was made wholly cumulative on the remaining parole period.

The District Court imposed a non-parole period of two years and a head sentence of three and a half years. The applicant sought leave to appeal to the Court of Criminal Appeal on the basis that the sentencing judge committed legal error and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by treating the commission of the offence "in company" as an aggravating factor, effectively punishing the applicant for the more serious section 113(2) offence to which he had not pleaded guilty
  • Whether, even if that error was established, the Court of Criminal Appeal should intervene and resentence the applicant
  • Whether the sentence was manifestly excessive in all the circumstances

Decision

The Crown conceded that the sentencing judge had erred. His Honour had explicitly referred to the offence being "committed in company" on multiple occasions during sentencing remarks, including when setting the non-parole period. Acting in company is the very feature that elevates the offence under section 113(1) to the more serious offence under section 113(2). By treating it as an aggravating factor, the sentencing judge was effectively punishing the applicant for a charge he had not faced and to which the Crown had agreed not to proceed.

The Court of Criminal Appeal confirmed that a sentencing court is bound to sentence an offender for the offences to which he or she has pleaded guilty. It cannot use facts that would constitute a more serious offence as aggravating circumstances when fixing the sentence.

Despite accepting the error, the Court declined to intervene. McClellan CJ at CL found that the objective seriousness of the offence, while at the lower end of the scale, was significantly compounded by highly unfavourable subjective circumstances. These included the applicant's extensive criminal history, the fact that he was on conditional liberty at the time, his poor behaviour in custody, and the Form 1 matters. The sentence was described as "stern" but not one that required correction by the Court.

The appeal was accordingly dismissed, with leave granted but no resentencing ordered.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court must confine itself to the offence charged and cannot use facts that would constitute a more serious offence as aggravating factors when fixing sentence. This principle flows from the High Court's decision in The Queen v De Simoni.
  • Where the Crown accepts a plea to a lesser charge, the sentencing judge is bound by that agreement and cannot effectively resentence the offender for the more serious conduct that was not pursued.
  • An established error in sentencing does not automatically require the Court of Criminal Appeal to intervene. The Court will still consider whether, taking all relevant matters into account, the resulting sentence was one that required correction.
  • Unfavourable subjective circumstances, including a lengthy criminal record, breach of parole, and poor custodial conduct, can be sufficient to support a stern sentence even where the objective seriousness of the offence is relatively low.
  • In dismissing the appeal, the Court noted that findings of special circumstances to extend the parole period for rehabilitation purposes were, in the circumstances, generous to the applicant.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 113(1) and 113(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Appeal Act 1912 (NSW)

Cases:
- The Queen v De Simoni (1981) 147 CLR 383
- R v McNaughton (2006) 163 A Crim R 381
- R v Ponfield (1999) 48 NSWLR 327