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Court of Criminal Appeal 19 February 2008

IRWIN, Scott Anthony v R

[2008] NSWCCA 7

Also reported as 181 A Crim R 123
Fraud & dishonestyTheft & property

Citation: IRWIN, Scott Anthony v R [2008] NSWCCA 7
Court: NSW Court of Criminal Appeal
Date: 19 February 2008
Judge(s): McClellan CJ at CL, James J, Barr J

Background

The appellant was sentenced in the NSW District Court in March 2007 after pleading guilty to nine counts of breaking, entering and stealing, four counts of obtaining money by false statement, and four counts of disposing of stolen property. The offences were committed in various Sydney suburbs in July and August 2004, with Judge Blackmore also taking into account 85 further offences of similar kinds under the relevant provisions of the Crimes (Sentencing Procedure) Act.

After committing the NSW offences, the appellant travelled to Queensland where he offended again and was convicted and imprisoned there. He remained in Queensland custody from around October 2004 to July 2006. The sentencing judge in NSW was therefore required to structure the NSW sentences in a way that accounted for the time already served in Queensland for separate offending.

The sentences imposed at first instance totalled eight years and six months in head sentences, with a total non-parole period of six years. The appellant sought leave to appeal, contending that the sentencing judge had erred in applying the totality principle and in calculating the appropriate discount for disclosing offences previously unknown to police.

  • Whether the sentencing judge correctly applied the totality principle when structuring cumulative NSW sentences alongside the already-served Queensland sentences
  • Whether the discount applied for the appellant's disclosure of ten previously unknown offences of breaking, entering and stealing was adequate, in light of the principles in R v Ellis
  • Whether the overall sentence was manifestly excessive given the combined effect of NSW and Queensland imprisonment

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal in part. James J (with whom McClellan CJ at CL and Barr J agreed) found that the sentencing judge had erred in two respects.

First, the Court found that insufficient allowance had been given for the totality principle. When NSW sentences operate in conjunction with a separately served interstate sentence, a sentencing court must stand back and assess whether the combined result is a just and proportionate reflection of the overall criminality. The structure of cumulative sentences here, when viewed alongside the Queensland imprisonment, produced a total that was excessive.

Second, the Court found that the discount afforded for the appellant's disclosure of ten previously unknown offences, which had been taken into account on a Form 1, was inadequate. Applying the principles from R v Ellis, a meaningful reduction is warranted where an offender discloses criminality that was genuinely unknown to authorities, because doing so involves an acknowledgment of guilt and carries real forensic risk for the offender.

Rather than disturb the elaborate cascading structure of sentences across all counts, the Court addressed both errors by varying the final breaking, entering and stealing sentence (offence 1). The non-parole period for that offence was reduced from one year six months to nine months, and the parole period was also shortened. This reduced the total head sentences from eight and a half years to seven and a half years, and the total non-parole periods from six years to five years and three months.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • Sentence for offence 2 quashed; replaced with a non-parole period of one year nine months commencing 4 March 2006 and expiring 3 December 2007, and a parole period of seven months
  • Sentence for offence 7 quashed; replaced with a non-parole period of two years commencing 4 June 2007 and expiring 3 June 2009, and a parole period of eight months
  • Sentence for offence 1 quashed; replaced with a non-parole period of nine months commencing 4 March 2010 and expiring 3 December 2010, and a parole period of two years three months commencing 4 December 2010 and expiring 3 March 2013
  • Appellant to be released on parole on 3 December 2010
  • All other sentences confirmed

Key Takeaways

  • The totality principle requires a sentencing court to assess the cumulative effect of NSW sentences alongside any interstate sentences already served, and to adjust where the combined result exceeds what is just and proportionate to the overall offending.
  • Under the principles in R v Ellis, a discount for disclosing previously unknown offences must be meaningful and genuine, not merely nominal, because the offender takes a real risk in making such disclosures.
  • Where an intricate, cascading sentence structure makes wholesale revision impractical, the Court of Criminal Appeal may give effect to identified errors by adjusting a single sentence within the structure rather than reconstructing the whole.
  • A Form 1 procedure (taking further offences into account) does not automatically produce an adequate Ellis discount; the sentencing court must expressly and sufficiently recognise the benefit conferred on authorities by the offender's disclosure.
  • In dismissing most grounds of appeal, the Court confirmed that the sentencing judge's careful and detailed approach was otherwise sound, and that the errors were discrete rather than systemic.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), ss 112, 178BB, 189
- Crimes (Sentencing Procedure) Act (NSW), Div 3 of Pt 3 (Form 1 procedure)

Cases
- Mill v The Queen (1988) 166 CLR 59 (totality principle)
- R v Ellis (1986) 6 NSWLR 603 (discount for disclosing unknown offences)
- Ryan v The Queen (2001) 206 CLR 267