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Court of Criminal Appeal 28 March 2007

R v Troy Rodney Hardes

[2007] NSWCCA 82

Theft & property
CRIMINAL LAW SENTENCING CROWN APPEAL WHETHER SENTENCES INADEQUATE

Citation: R v Troy Rodney Hardes [2007] NSWCCA 82
Court: NSW Court of Criminal Appeal
Date: 28 March 2007
Judges: Simpson J, Barr J, Howie J

Background

The respondent, a 33-year-old man with a lengthy history of drug dependence and acquisitive crime, was sentenced in the District Court after pleading guilty to ten counts of break and enter and stealing from domestic premises in Newcastle. The offences were committed across a concentrated period between late November 2005 and early February 2006, shortly after the respondent was released from custody. In total, he was responsible for 48 break-and-enter offences, with 38 additional matters taken into account on a schedule.

The respondent had cooperated extensively with police, accompanying them to premises he had burglarised and disclosing offences that would otherwise have remained unsolved. He also presented genuinely encouraging evidence at sentencing of his first sustained period of drug abstinence, participation in rehabilitation programs, and commitment to a methadone program.

The District Court imposed fixed terms of six months for each of the nine lesser counts (staggered across three tranches), plus a non-parole period of 18 months and a balance of 12 months for the most serious count, producing an overall sentence of approximately three years and two months. The Director of Public Prosecutions appealed, contending the sentences were manifestly inadequate.

  • Whether the sentences imposed by the District Court were so inadequate as to warrant intervention by the Court of Criminal Appeal.
  • What weight should be given to the respondent's rehabilitation prospects and personal circumstances when resentencing following a successful Crown appeal.
  • Whether the court should exercise its discretion to decline to intervene, given the respondent's continued progress after sentence.

Decision

The Court of Criminal Appeal accepted the Crown's submission that the original sentences were inadequate. The offences were serious, involving 48 residential burglaries, and the overall sentence failed to reflect the gravity and volume of the offending, notwithstanding the respondent's significant mitigating circumstances.

The Court acknowledged the respondent's progress was genuinely impressive. By the time of the appeal hearing, he remained drug-free, was progressing toward a lower security classification, and had maintained his rehabilitation efforts. However, Barr J held this material, while encouraging, did not persuade the Court to exercise its discretion against intervention.

In resentencing, the Court applied the principle that sentences imposed following a successful Crown appeal are generally towards the lower end of the available range. The revised sentence was structured to achieve an effective overall term of six years, equally divided between non-parole and parole periods, with the extended balance of term expressly justified by the respondent's need for prolonged support from the Probation and Parole Service in addressing his drug addiction.

Orders Made

  • The appeal was allowed and the original sentences quashed.
  • For the 2003 offence and counts 2, 3 and 4: fixed terms of six months each, commencing 6 February 2006 and expiring 5 August 2006.
  • For counts 5, 6 and 7: fixed terms of six months each, commencing 6 May 2006 and expiring 5 November 2006.
  • For counts 8, 9 and 10: fixed terms of six months each, commencing 6 August 2006 and expiring 5 February 2007.
  • For count 1 (the most serious offence), taking into account 38 scheduled matters: non-parole period of two years commencing 6 February 2007, with a balance of term of three years.
  • Compensation ordered in the sum of $4,500.
  • The respondent declared eligible for release on parole from 5 February 2009.

Key Takeaways

  • Sentences imposed by the Court of Criminal Appeal following a successful Crown appeal are generally towards the lower end of the available range, consistent with the principle in Dinsdale v The Queen.
  • Genuine and sustained rehabilitation efforts, including drug abstinence, program participation, and cooperation with authorities, are relevant mitigating factors but do not automatically preclude the Court from intervening when a sentence is manifestly inadequate.
  • A balance of term exceeding one-third of the non-parole period may be justified where the offender has a special and demonstrated need for extended supervision and support from the Probation and Parole Service.
  • The volume and frequency of offending, even where individual offences are not at the highest end of the scale, weighs significantly in the sentencing calculus for residential burglaries.
  • Extensive cooperation with police, including accompanying investigators to crime scenes and volunteering information about uncharged offences, remains a meaningful mitigating consideration in the resentencing exercise.

Legislation and Cases Referenced

Cases:
- Attorney-General's Application [No 1]; R v Ponfield [1999] NSWCCA 435
- R v Ellis (1986) 6 NSWLR 603
- Bugmy v The Queen (1990) 169 CLR 525
- The Queen v Osenkowski (1982) 30 SASR 212
- R v Allpass (1993) 72 A Crim R 561
- Dinsdale v The Queen [2000] HCA 54