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Court of Criminal Appeal 4 September 2007

ABREU v R

[2007] NSWCCA 267

Theft & propertyFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE MULTIPLE OFFENCES BREAK AND ENTER AND LARCENY SIGNIFICANT HISTORY OF OFFENDING WHETHER PEARCE INCORRECTLY APPLIED

Citation: ABREU v R [2007] NSWCCA 267
Court: New South Wales Court of Criminal Appeal
Date: 4 September 2007
Judge(s): McClellan CJ at CL; Howie J; Harrison J

Background

The appellant was sentenced in the District Court on 25 November 2005 (though the sentence was recorded in the judgment as 25 November 2006) following guilty pleas to a series of property and weapons offences. These included break and enter at a hardware store, using a Swiss army knife to prevent lawful apprehension, and multiple larcenies committed across various retail stores in Sydney. Several further larceny offences were also taken into account on two Forms 1.

The sentencing judge also dealt with a breach of a bond previously imposed for possessing prohibited drugs. The offending spanned from November 2003 to September 2004 and involved repeated theft of high-value electronics and vintage wine, often carried out with a co-offender.

The application for leave to appeal the sentences was filed on 30 May 2007, well outside the time limit. The appellant accepted that if the Court was not satisfied the overall sentence was excessive, leave should be refused.

  • Whether the sentencing judge incorrectly applied the principles in Pearce v R (1998) 194 CLR 610 when structuring concurrent and cumulative sentences across multiple offences
  • Whether the overall sentence was excessive, having regard to the principles of totality
  • Whether an out-of-time application for leave to appeal should be granted in the circumstances

Decision

McClellan CJ at CL (with whom Howie J and Harrison J agreed) found no basis to intervene. His Honour described the offending as "a litany of criminal behaviour of the same type" and accepted the sentencing judge's characterisation of the criminality as objectively serious. The appellant's extensive prior record also weighed heavily, requiring that the sentence reflect a continuing attitude of disobedience to the law, consistent with the principles in Veen v The Queen (No 2).

The Court noted a point that worked against the appellant rather than in his favour. By directing that the sentences for the two most serious offences run wholly concurrently, and directing that the larceny sentences also run wholly concurrently with each other, the sentencing judge may have failed to impose appropriate individual punishment for each offence. Applying the Pearce framework, the Court considered the appellant likely received a lenient outcome rather than an excessive one.

On that basis, the Court was satisfied that even if it were to intervene and resentence, the final result could not be less than what the sentencing judge imposed. Leave to appeal was accordingly refused.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where a sentencing judge directs multiple serious offences to be served wholly concurrently, this may actually understate the required punishment, rather than produce an excessive sentence.
  • Applying Pearce v R, separate offences ordinarily warrant some degree of cumulation to reflect individual criminality; directing complete concurrence across distinct offences risks failing to account adequately for each.
  • An extensive criminal history bearing on the same type of offending is a significant sentencing consideration: principles of retribution, personal deterrence, and community protection may justify a more severe sentence than would otherwise apply.
  • In dismissing the application, the Court treated the appellant's own concession (that leave should be refused if the sentence was not shown to be excessive) as decisive once the Court concluded the sentence may have been lenient rather than harsh.
  • Out-of-time applications for leave to appeal face a high threshold; here, the substantial delay combined with the absence of any identifiable error in the sentence made the case for intervention particularly weak.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1), 112(1), 117(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9

Cases:
- Pearce v R (1998) 194 CLR 610
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v McNaughton (2006) 66 NSWLR 566
- Thomson v R (2000) 49 NSWLR 383