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42
Court of Criminal Appeal 26 June 2008

Porter v R

[2008] NSWCCA 145

Fraud & dishonestyTheft & property
CRIMINAL LAW SENTENCING BREAK ENTER AND STEAL MALICIOUSLY DAMAGE PROPERTY BY FIRE HEAD SENTENCE EXCESSIVE NON

Citation: Porter v R [2008] NSWCCA 145
Court: NSW Court of Criminal Appeal
Date: 26 June 2008
Judge(s): Bell JA, Johnson J, McCallum J

Background

A 19-year-old man pleaded guilty in the Orange District Court to two counts of break, enter and steal and five counts of maliciously damaging property by fire. In the early hours of 7 July 2006, he broke into a florist shop in a commercial building in Orange, stole approximately $50 in coins, and then used a cigarette lighter to set fire to a curtain before leaving. He told the court he had not intended to burn the whole shop down, but he also did not report the fire.

The fire spread rapidly. The florist and an adjacent boutique were totally destroyed. Several other businesses in the building, including a photography studio, an electrical rental store, and a restaurant, sustained severe smoke and water damage. Two residents sleeping in first-floor units had to be evacuated.

After exchanging stolen coins at a nearby service station, the offender returned to the same building and broke into a second shop, stealing a further $20. He pleaded guilty and was sentenced in the District Court to seven years' imprisonment with a three-year non-parole period on each count, all served wholly concurrently.

  • Whether the sentencing judge erred in the approach to accumulation, concurrency, and totality when imposing the head sentence
  • Whether the harm and economic loss suffered by small business owners is a relevant consideration in sentencing an arson offender
  • The proper meaning of "conditional liberty" under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 as an aggravating factor
  • Whether the non-parole period of three years was excessive and should also be reduced

Decision

The Court of Criminal Appeal found that the District Court had erred in its approach to accumulation and totality. Imposing wholly concurrent sentences on all seven counts failed to reflect the true criminality of the overall conduct. The Court held that some degree of accumulation was necessary to achieve a sentence that adequately represented the full gravity of the offending across multiple premises and multiple victims.

On the question of harm to small business owners, the Court confirmed that the serious economic and personal impact suffered by proprietors of small businesses whose premises and livelihoods are damaged or destroyed by arson is a directly relevant consideration on sentence. The fire here caused total destruction of two businesses and heavy damage to several others, making the human and financial consequences of the offending a significant factor in the sentencing exercise.

The Court also considered the meaning of "conditional liberty" under s 21A(2)(j). This provision treats the commission of an offence while on conditional liberty (such as bail or parole) as an aggravating factor. The Court examined the proper scope of that concept in the context of this offender's circumstances.

Although error was established in the head sentence, the Court declined to reduce the non-parole period. The three-year non-parole period was found to represent the minimum time the offender should serve having regard to objective seriousness, deterrence, denunciation, community protection, and his subjective circumstances. The head sentence was reduced from seven years to five years and three months, with the non-parole period remaining at three years.

Orders Made

  • Leave granted to appeal against sentences imposed on 26 April 2007 in the Orange District Court
  • Appeal allowed; original sentences quashed
  • For break, enter and steal at Bradley's Florist: fixed term of 12 months from 1 March 2007, expiring 29 February 2008
  • For each of the five malicious damage by fire offences: non-parole period of two years and six months from 1 September 2007 to 28 February 2010, with a balance of term of two years and three months from 1 March 2010 to 31 May 2012
  • For break, enter and steal at Swish Home and Living: fixed term of 18 months from 1 December 2007, expiring 31 May 2009
  • Earliest parole eligibility date: 28 February 2010
  • Recommendation confirmed that the applicant be placed in a young offenders programme and provided with psychological counselling in custody

Key Takeaways

  • A sentencing court that imposes wholly concurrent sentences across multiple counts involving multiple victims and separate acts of offending may fall into error by failing to reflect total criminality through appropriate accumulation.
  • The serious economic harm and personal loss inflicted on small business owners by arson is a directly relevant sentencing consideration, not merely a background circumstance.
  • Where a head sentence is found to be excessive on appeal, the non-parole period is not automatically reduced. The Court of Criminal Appeal confirmed that the non-parole period must independently reflect the minimum term the offender should serve, and that it was wrong to reduce it as a mechanical consequence of reducing the head sentence.
  • Under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999, "conditional liberty" as an aggravating factor requires careful examination of whether the offender was in fact subject to a relevant form of supervised or conditional release at the time of the offending.
  • In dismissing the challenge to the non-parole period, the Court treated three years as the appropriate minimum, balancing objective seriousness of a fire offence causing widespread damage against the offender's youth and other subjective circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(1), 195(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(j)
- Criminal Appeal Act 1912 (NSW)

Cases
- Pearce v The Queen (1998) 194 CLR 610
- Power v The Queen (1974) 131 CLR 623
- Siganto v The Queen (1998) 194 CLR 656
- Wong v The Queen (2001) 207 CLR 584
- R v Bloomfield (1998) 44 NSWLR 734
- R v Wickham [2004] NSWCCA 193
- R v Lilley (2004) 150 A Crim R 591
- R v Elyard [2006] NSWCCA 43
- R v FD [2006] NSWCCA 31
- R v Baker [2000] NSWCCA 85
- R v Porteous [2005] NSWCCA 115
- R v Mauri [2005] NSWCCA 272
- R v MA (2004) 145 A Crim R 434
- R v Merrin (2007) 174 A Crim R 100
- R v George (2004) 149 A Crim R 38
- AJO v R [2008] NSWCCA 28
- Kerr v R [2008] NSWCCA 133
- Director of Public Prosecutions (Vic) v Bright (2006) 163 A Crim R 538