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Court of Criminal Appeal 15 August 2008

R v Clifford

[2008] NSWCCA 190

Theft & property
CRIMINAL LAW SENTENCING CROWN APPEAL OFFENCES OF BREAK, ENTER AND STEAL SENTENCE MANIFESTLY INADEQUATE REPEAT OFFENDING

Citation: R v Clifford [2008] NSWCCA 190
Court: Court of Criminal Appeal, New South Wales
Date: 15 August 2008
Judge(s): Allsop P, James J, Price J

Background

The respondent pleaded guilty in the Local Court to a series of offences including multiple counts of break, enter and steal (contrary to s 112(1) of the Crimes Act 1900), break and enter with intent (s 113(1)), and stealing a motor vehicle (s 154AA(1)). He was sentenced in the District Court at Gosford on 7 February 2008. At that hearing he also asked the sentencing judge to take into account 14 further offences listed on a Form 1 document (a procedural mechanism by which additional offences are acknowledged and considered during sentencing without separate convictions being recorded). Twelve of those Form 1 matters were also break, enter and steal offences.

The sentencing judge allowed a 25 per cent discount reflecting guilty pleas entered at the first reasonable opportunity and genuine remorse. The resulting total effective sentence was a non-parole period of 2 years 6 months with a balance of term of 2 years 6 months, for an overall head sentence of 5 years. The Crown appealed on the ground that those sentences were manifestly inadequate.

  • Whether the sentences imposed in the District Court were manifestly inadequate, having regard to the nature and number of offences, the volume of Form 1 matters, repeat offending, and offending while on conditional liberty.
  • Whether the Court of Criminal Appeal should exercise its discretion not to intervene, particularly given the Crown's conduct at the original sentencing hearing.
  • How the cumulative effect of multiple aggravating factors should be reflected in the overall sentence.

Decision

The Court of Criminal Appeal, in reasons delivered by Price J (with Allsop P and James J agreeing), found that the District Court had fallen into error and that the sentences were manifestly inadequate. The cumulative weight of the aggravating factors, including the sheer number of offences, their repetition, their targeting of small businesses, and the fact that they were committed while the respondent was on conditional liberty, required a substantially heavier sentence than that imposed.

The Court considered whether to exercise its discretion not to intervene. It noted that the Crown had made appropriate submissions at the sentencing hearing, including offering relevant authorities on totality, and had not been silent on the question of custody. This was therefore not a case where prosecutorial acquiescence or "forensic urging" warranted restraint. The degree of error was found to be significant enough to require intervention.

The Court acknowledged evidence that the respondent had remained drug free in custody and had not committed any disciplinary offences in gaol. Those matters were taken into account, as was the original finding of special circumstances justifying a longer than usual additional term. The resulting revised sentence carried a total effective non-parole period of 3 years 9 months and a balance of term of 2 years 3 months, producing an overall head sentence of 6 years.

Orders Made

  • Crown appeal allowed.
  • Sentences imposed in the District Court on counts 2 to 7 (inclusive) quashed.
  • Count 2: imprisonment with a non-parole period of 2 years 9 months from 12 September 2007, expiring 11 June 2010, and a balance of term of 2 years 6 months expiring 11 December 2012.
  • Count 3: fixed term of 15 months from 12 October 2007, expiring 11 January 2009.
  • Count 4: fixed term of 18 months from 12 December 2007, expiring 11 June 2009.
  • Count 5: fixed term of 18 months from 12 March 2008, expiring 11 September 2009.
  • Count 6: fixed term of 21 months from 12 June 2008, expiring 11 March 2010.
  • Count 7: fixed term of 21 months from 12 December 2008, expiring 11 September 2010.
  • Overall effective sentence: non-parole period of 3 years 9 months from 12 December 2006 to 11 September 2010, with a balance of term of 2 years 3 months expiring 11 December 2012.

Key Takeaways

  • The Court of Criminal Appeal confirmed that Crown appeals against sentence remain discretionary and are generally rare, but intervention is warranted where the sentencing error is significant and not merely a matter of substituting the appellate court's preference.
  • Aggravating factors must be considered cumulatively: where multiple factors overlap (volume of offences, repeat conduct, offending on conditional liberty, targeting of small businesses), their combined weight can render an otherwise plausible individual sentence manifestly inadequate in total.
  • The discretion not to intervene on a Crown appeal is not automatically enlivened by the Crown's conduct at the sentencing hearing. Where the Crown made appropriate submissions and tendered relevant authorities, the court found no basis for restraint on that ground.
  • Form 1 matters carry real sentencing weight. The Court's reasoning reflected that absorbing 14 additional offences, most of them substantive break and enter offences, into a single count's sentence does not reduce their significance to the overall assessment of criminality.
  • Post-sentence evidence of rehabilitation and good behaviour in custody (here, remaining drug free and breach-free) remains a relevant consideration even on a Crown appeal, and was factored into the revised sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 112(1), 113(1), 154AA(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 21A(2)

Cases
- House v The King (1936) 55 CLR 499
- Dinsdale v The Queen (2000) 202 CLR 321
- Lowndes v The Queen (1999) 195 CLR 665
- Malvaso v The Queen (1989) 168 CLR 227
- R v Wall [2002] NSWCCA 42
- Griffiths v The Queen (1977) 137 CLR 293
- Wong and Leung v The Queen (2001) 76 ALJR 79
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Pearce v The Queen (1998) 194 CLR 610
- Markarian v The Queen (2005) 79 ALJR 1048
- Mill v R (1988) 166 CLR 59
- Everett v The Queen (1994) 181 CLR 295
- R v Tait (1979) 46 FLR 386
- R v Simpson (2001) 53 NSWLR 704
- R v Ponfield (1999) 48 NSWLR 327
- R v McNaughton [2006] NSWCCA 242
- R v Harris (2007) 171 A Crim R 267
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Ayoubi v Regina [2006] NSWCCA 364
- Various other authorities cited in the judgment