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Court of Criminal Appeal 18 September 2008

Challis v R

[2008] NSWCCA 210

Theft & property
CRIMINAL LAW SENTENCE APPEAL USE OF SENTENCING STATISTICS AGGRAVATING FACTORS PRIOR CRIMINAL RECORD

Citation: Challis v R [2008] NSWCCA 210
Court: Court of Criminal Appeal, New South Wales
Date: 18 September 2008
Judge(s): McClellan CJ at CL, Hislop J, Hoeben J (judgment by Hoeben J, others agreeing)

Background

The applicant pleaded guilty in the District Court to breaking and entering a golf club on Christmas Eve 2006 and stealing over $28,000 in cash, along with two counts of malicious damage to an ATM and a security camera. A further count of damaging a safe was taken into account on a Form 1 (a procedure where additional related offences are acknowledged at sentencing without resulting in separate penalties). The offences were carefully planned: the applicant had visited the premises beforehand under a false name, arrived equipped with a sledgehammer and angle grinder, and used a Batman mask to conceal his identity.

Christie DCJ sentenced the applicant in the District Court in December 2007. The principal sentence for the break and enter was four years' imprisonment with a non-parole period of four years. The malicious damage sentences ran concurrently, meaning the applicant received no additional custodial time for those offences.

The applicant sought leave to appeal his sentence to the Court of Criminal Appeal, raising several grounds concerning the sentencing judge's use of his prior criminal record and his treatment of the malicious damage offences when assessing objective seriousness.

  • Whether the sentencing judge erred in his characterisation of maximum penalties as reserved for "repetitive offenders," and whether this constituted an impermissible use of the applicant's prior criminal record
  • Whether the sentencing judge erred in applying sentencing statistics and guidelines
  • Whether the sentencing judge impermissibly double-counted the malicious damage offences as aggravating factors when sentencing for the break and enter, thereby punishing the applicant twice for the same conduct
  • Whether any identified errors were sufficient to warrant the Court of Criminal Appeal imposing a lesser sentence under s 6(3) of the Criminal Appeal Act 1912

Decision

On the use of prior criminal record, the Court examined the sentencing judge's remark that maximum penalties are reserved for "repetitive offenders" and that the applicant "must now be in that category." The Court accepted that a sentencing judge may legitimately treat an offender's extensive history of similar offending as relevant to specific deterrence, but scrutinised whether the prior record had been used in a way that impermissibly elevated the sentence beyond what the current offences warranted.

On the malicious damage issue, the Court found that the sentencing judge's reference to the offence being "accompanied by vandalism" was, on its face, problematic. By referring to the malicious damage without qualification, the judge appeared to be treating conduct that was the subject of separate charges as an aggravating feature of the break and enter. The Court acknowledged there was at least one instance of property damage not covered by a separate charge (forcing open a steel cabinet), but the unqualified language suggested the error had substance.

Despite identifying this error, the Court declined to intervene. It held that the sentencing judge had not given the vandalism observation significant weight, describing the damage as not "of its worst kind." Critically, because the malicious damage sentences ran concurrently, the applicant had in practical terms received no additional punishment for those offences.

The Court applied the established principle that identifying error is not enough to warrant appellate intervention. Under s 6(3) of the Criminal Appeal Act 1912, the Court must be satisfied that some lesser sentence is warranted in law. On the facts as a whole, including the careful planning, the offences committed while on both parole and bail, and the applicant's extensive record of similar offending, the Court was not so satisfied.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Identifying a sentencing error does not automatically entitle an applicant to a reduced sentence. Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal must also be affirmatively satisfied that a lesser sentence is warranted in law.
  • Where a sentencing judge refers to additional damage as an aggravating feature of a principal offence, but that damage was the subject of separate charges, there is a real risk of impermissible double-counting. However, the weight actually given to the observation, and the practical effect of concurrent sentences, are both relevant to whether any lesser sentence is warranted.
  • A prior criminal record of similar offending may legitimately inform the degree of weight given to specific deterrence, but its proper use at sentencing remains subject to careful scrutiny on appeal.
  • Concurrent sentences for related offences are a relevant contextual factor when assessing whether a sentencing error has caused actual prejudice to an applicant.
  • Aggravating circumstances such as offending while on parole and on bail, combined with detailed pre-offence planning, are capable of substantially elevating the objective seriousness of a break and enter offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112, 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Baumer v The Queen (1988) 166 CLR 51
- Director of Public Prosecutions v Ottewell [1970] AC 642
- Markarian v The Queen (2005) 228 CLR 357
- R v Berg [2004] NSWCCA 300
- R v McNaughton [2006] NSWCCA 242
- R v Misiepo [2005] NSWCCA 405
- R v Moffitt (1990) 20 NSWLR 114
- R v P [2004] NSWCCA 218
- R v Ponfield and Ors (1999) 48 NSWLR 327
- R v Simpson (2001) 53 NSWLR 704
- R v Way (2004) 60 NSWLR 168
- Robertson v R [2007] NSWCCA 270
- Veen v The Queen (No 2) (1988) 164 CLR 465