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Court of Criminal Appeal 20 October 2008

Chandler v R

[2008] NSWCCA 240

Theft & property

Citation: Chandler v R [2008] NSWCCA 240
Court: New South Wales Court of Criminal Appeal
Date: 20 October 2008
Judge(s): Beazley JA, Hislop J, Price J

Background

The appellant was a 33-year-old man with an extensive criminal history spanning New South Wales and Victoria, including convictions for approximately 186 break-and-enter and related offences. He pleaded guilty in the District Court to 12 counts of break and enter and commit a serious indictable offence (larceny) and two counts of break and enter with intent to commit a serious indictable offence. Seven additional matters were placed on a Form 1 to be taken into account at sentencing.

The offences were committed across two periods in 2006. When arrested at a Lismore motel, the appellant cooperated with police, nominated offences during a drive-around, and admitted all subject offences in an electronically recorded interview. He had symptoms of Asperger's syndrome, a diagnosed major personality disorder, and a long history of poly-substance abuse beginning at age 14.

The District Court sentenced the appellant to an overall term of five years and six months imprisonment, commencing 30 July 2006 and expiring 28 January 2012, with a non-parole period of three and a half years. The sentencing judge accepted his remorse, allowed the full guilty plea discount, and found special circumstances based on the Asperger's syndrome and the overall length of the sentence relative to his age. The appellant sought leave to appeal, relying on written submissions only.

  • Whether the sentencing judge erred by failing to account for the recovery of stolen property when assessing the value of property taken
  • Whether the sentence was disproportionate to the objective seriousness of the offences
  • Whether the sentencing judge failed to give adequate weight to the appellant's personal circumstances, including his Asperger's syndrome, personality disorder, and disadvantaged background
  • Whether the total sentence was manifestly excessive
  • Whether the sentencing judge erred in failing to give weight to the fact that some of the offences could have been dealt with summarily in the Local Court
  • Whether a sixth ground of appeal raised by letter near the hearing date disclosed any error

Decision

On the question of property recovery, the Court found that the evidence before the sentencing judge showed only a modest and fortuitous recovery of property (from one offence worth a maximum of $4,829.29), not the "almost half" the appellant claimed. The recovery occurred because the appellant still had the items in his possession when police arrived, not through any deliberate remedial act. Applying the principle from Thewlis v R, something more than merely having stolen goods on hand when arrested is required for property recovery to operate as mitigation. No error was established on this ground.

On the question of personal circumstances, the Court acknowledged the appellant's difficult background, psychological conditions, and drug history. However, it noted that the sentencing judge expressly considered these matters and gave the appellant the benefit of special circumstances. The Court found no error in the weight accorded to these factors, particularly given the appellant's extensive prior record, the number of offences, and that several were committed while he was on conditional liberty.

Regarding the suggestion that the offences could have been dealt with summarily, the Court confirmed that a District Court sentencing on indictment is not bound by Local Court jurisdictional limits. While a judge may have regard to the possibility of summary disposal, this is not a universal mitigating factor. The sentencing judge here determined the matters were properly before the District Court, and the Court of Criminal Appeal found no error in that reasoning.

Across all six grounds, the Court found that no error had been established and that no less severe sentence was warranted in law. The Court applied the well-established principle from R v Simpson that appellate intervention is warranted only where error is shown and the court forms a positive view that a lesser sentence should have been passed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Fortuitous recovery of stolen property (found on an offender at the time of arrest) does not, without more, constitute a mitigating factor at sentencing; something special, such as a deliberate and sacrificial act of restitution, is required.
  • A court sentencing on indictment in the District Court is not bound by Local Court sentencing limits, even where the offences were capable of summary disposal. The weight given to that factor, if any, varies according to the circumstances of the individual case.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that it will only intervene in a sentence where error is first established and the court forms the positive opinion that a less severe sentence is warranted in law and should have been passed, as set out in R v Simpson.
  • An extensive prior record for offences of the same type, combined with offending while on conditional liberty, can significantly limit the mitigating value of personal circumstances such as mental health diagnoses and a difficult upbringing.
  • Special circumstances findings under New South Wales sentencing law do not automatically reduce the overall sentence; they bear on the relationship between the non-parole period and the total term.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(1) and 113(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Thewlis v R [2008] NSWCCA 176
- Ryan v R (2001) 206 CLR 267
- Lewins v R [2007] NSWCCA 189
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v McNaughton [2006] NSWCCA 242
- R v El Masri [2005] NSWCCA 167
- R v Simpson (2001) 53 NSWLR 704