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Court of Criminal Appeal 13 November 2007

Hall v Regina

[2007] NSWCCA 301

Fraud & dishonestyTheft & propertyTraffic & driving
CRIMINAL LAW: PLEAS OF GUILTY NO QUESTION OF PRINCIPLE

Citation: Hall v Regina [2007] NSWCCA 301
Court: NSW Court of Criminal Appeal
Date: 13 November 2007
Judge(s): McClellan CJ at CL, Hidden J, Price J

Background

The appellant pleaded guilty in the Local Court to 27 charges, including robbery, stealing from the person, taking and driving a conveyance, obtaining a benefit by deception, and break, enter and steal. He was committed to the District Court for sentencing, where he also asked the sentencing judge to take into account a further 65 offences on a Form 1 (a document listing additional offences to be considered in mitigation without separate sentencing). The offences primarily involved a sustained series of handbag thefts targeting middle-aged to elderly women in shopping centre car parks around Rose Bay, Double Bay and the lower North Shore between November and December 2004.

The appellant used stolen vehicles to drive past victims as they loaded shopping, seizing their handbags from their persons or trolleys. He then used stolen ATM cards to withdraw money, pawned jewellery taken from victims, and in one case used stolen keys to break into a victim's car park and steal her car. The District Court imposed an aggregate sentence of 10 years and 9 months imprisonment with a non-parole period of 8 years.

The appellant appeared unrepresented before the Court of Criminal Appeal, relying on written submissions developed orally. He was 36 at the time of the offences and had a prior record dating back to 1987, including a Queensland conviction for armed robbery.

  • Whether the representation the appellant received during sentence proceedings in the District Court was competent
  • Whether the aggregate sentence of 10 years and 9 months (with a non-parole period of 8 years) was manifestly excessive
  • Whether the sentencing judge's failure to comply with the procedural requirements of s 44(1) of the Crimes (Sentencing Procedure) Act 1999 (announcing the head sentence before specifying the non-parole period) warranted intervention

Decision

On the question of representation, the Court examined the appellant's specific complaints about how his case had been presented at sentencing. The Court found the matters raised, individually and in combination, did not demonstrate that the sentencing exercise was flawed. The appellant's criticisms were characterised as minor and of no significance.

On the procedural error regarding s 44(1), the Court accepted that the sentencing judge had announced the head sentence before specifying the non-parole period, which did not comply with the statutory requirement. However, the Court found the effect of the sentences was not in doubt, the sentencing process had not miscarried, and the error was purely technical. No intervention was warranted on this basis.

On manifest excess, the Court rejected the submission that the aggregate sentence was the product of an improper accumulation that failed to apply the totality principle. The Court characterised the total sentence as "undoubtedly severe but appropriately so," reflecting the sustained and serious nature of the criminality across 27 charged offences and a large number of Form 1 matters. The Court found the effective non-parole period of 8 years was appropriate to reflect retribution and deterrence, while still preserving a meaningful period of parole eligibility for rehabilitation.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A purely technical failure to follow the procedural sequence prescribed by s 44(1) of the Crimes (Sentencing Procedure) Act 1999 will not warrant appellate intervention where the effect of the sentences is not in doubt and the sentencing process did not otherwise miscarry.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that an aggregate sentence must be assessed against the totality of the criminality involved, including offences taken into account on a Form 1.
  • Complaints about competence of representation at sentencing require more than identifying minor imperfections in the record; the matters raised must demonstrate a real flaw in the sentencing exercise to justify intervention.
  • Where a sustained campaign of targeted offending against vulnerable victims produces dozens of charges, a severe aggregate sentence may still fall within the proper exercise of a sentencing judge's discretion.
  • An unrepresented appellant on a sentence appeal bears the burden of identifying errors of sufficient weight; intelligence and articulate advocacy alone will not overcome an absence of substantive grounds.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 94, 112, 117, 154A, 178BA, 188
- Pawnbrokers and Second Hand Dealers Act 1996 (NSW): s 24
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 44(1)

Cases:
- R v Munro [2006] NSWCCA 350
- Nudd v The Queen (2006) 80 ALJR 614
- R v Cramp [2004] NSWCCA 264
- Itaoui v R (2005) 158 A Crim R 233
- R v Close (1993) 65 A Crim R 55