Citation: Struczewski v R [2008] NSWCCA 8
Court: NSW Court of Criminal Appeal
Date: 1 February 2008
Judge(s): Hodgson JA, Kirby J, Buddin J
Background
The applicant, a 39-year-old man with an extensive criminal history dating back to 1981, pleaded guilty in the District Court to three offences of break, enter and steal, two offences of take and drive a conveyance, and a number of other dishonesty offences. The offences were committed over five days in July 2005 across several regional NSW locations, primarily to fund a long-standing drug addiction. Several related matters were dealt with on Form 1 documents (a procedural mechanism allowing courts to take additional charges into account when sentencing, without recording separate convictions).
The District Court sentenced the applicant to a total effective non-parole period of four years and a total effective sentence of five years and six months. A 25% discount was applied to reflect early guilty pleas. The sentencing judge also took into account the applicant's remorse, his need to serve time in protective custody, a forensic psychiatrist's report identifying a significant personality disorder, and a severe drug dependency.
The applicant appeared unrepresented before the Court of Criminal Appeal and sought leave to appeal on the grounds that the sentences were manifestly excessive.
Legal Issues
- Whether the sentencing judge erred in finding that the offences involved planning rather than being purely opportunistic
- Whether the sentences should have been made wholly concurrent, rather than partially accumulated, given the offences occurred within a five-day period
- Whether the overall sentences, or the non-parole period in particular, were manifestly excessive
Decision
The Court rejected the applicant's challenge to the planning finding. Buddin J noted that some degree of planning is inherent in the nature of break-and-enter offences, and that the sentencing judge did not treat the offences as involving professional-level planning. In any event, the Court was satisfied that this finding had little bearing on the ultimate sentences imposed.
On the question of accumulation, the Court dismissed the argument that wholly concurrent sentences were warranted simply because the offences occurred over five days. Buddin J emphasised that the offences were entirely separate acts of criminality, committed on different days and against different victims. Notably, the applicant's own counsel at the sentencing hearing had conceded that some accumulation was appropriate.
As to manifest excess, the Court found that the sentences, both individually and in their overall effect, were not excessive. The seriousness of the offences and the applicant's lengthy record of similar convictions justified the sentences imposed. The Court also observed that the partial concurrency of several sentences already represented a degree of leniency built into the overall result.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that wholly concurrent sentences are not automatically warranted simply because multiple offences were committed in close temporal proximity; separate victims and separate occasions may justify accumulation.
- A sentencing court's finding that offences involved a measure of planning will not be disturbed on appeal where that conclusion is inherently consistent with the nature of the offences charged.
- In dismissing the appeal, the Court emphasised that in-built concurrency across multiple sentences already constitutes a form of leniency when assessing whether the overall penalty is excessive.
- An applicant's counsel conceding at first instance that some accumulation was warranted carried weight in the appellate court's rejection of the argument that all sentences should have run concurrently.
- Extensive and directly relevant prior criminal history, combined with repeated failures to complete rehabilitation programs, are significant factors weighing against a finding of manifest excess.
Legislation and Cases Referenced
Legislation: No specific legislation cited in the judgment text.
Cases: Two decisions of the Court of Criminal Appeal were referred to by the applicant as comparable cases, but the Court declined to name or rely on them, noting their circumstances were sufficiently different to be of no real assistance.