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Court of Criminal Appeal 16 July 2009

DODDS, Shane Barry v R

[2009] NSWCCA 191

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE BREAKING INTO HOUSE AND STEALING

Citation: DODDS, Shane Barry v R [2009] NSWCCA 191
Court: NSW Court of Criminal Appeal
Date: 16 July 2009
Judge(s): Hodgson JA, Howie J, Fullerton J

Background

The appellant pleaded guilty in the District Court to breaking into a private residence at Middle Cove and stealing property valued at approximately $40,000. The offence was committed in July 2006 and the appellant was identified through a DNA match from blood left at the premises. He was arrested in January 2007 and pleaded guilty the day before his trial was listed.

The sentencing judge, Solomon DCJ, found the offence fell below the mid-range of objective seriousness but imposed a sentence of 2 years and 1 month non-parole period with a balance of term of 2 years and 2 months. The starting point before the plea discount was 5 years' imprisonment.

The appellant sought leave to appeal on the ground that the sentence was manifestly excessive, relying primarily on Judicial Information Research System (JIRS) statistics to support that contention.

  • Whether the sentence of imprisonment was manifestly excessive given the sentencing judge's finding that the offence was below the mid-range of objective seriousness
  • Whether JIRS statistics provide a reliable or appropriate tool for assessing the appropriateness of a sentence under review

Decision

The Court of Criminal Appeal rejected the submission that the sentence was manifestly excessive. Fullerton J, with whom Hodgson JA and Howie J agreed, held that the sentencing judge's starting point of 5 years appropriately reflected two statutory aggravating factors: the appellant's prior criminal history, including a 2004 conviction for break, enter and steal, and the substantial value and personal significance of the property stolen.

The Court affirmed that the 15 per cent discount applied for the guilty plea, the finding of genuine contrition, and the finding of special circumstances (justifying a longer than usual balance of term to support rehabilitation) were all generous findings in the appellant's favour. The non-parole period of just under 50 per cent of the total term fell within the permissible sentencing discretion and disclosed no manifest error.

On the JIRS statistics argument, the Court reiterated its longstanding caution against treating such statistics as a meaningful benchmark. The Court noted, following Robertson v R, that using statistics as a measure of sentence appropriateness risks creating a self-fulfilling range bearing little relationship to the maximum penalty set by Parliament. In this case, the statistical base was further distorted because only four offenders within the JIRS dataset matched the appellant's specific profile of age, single count, guilty plea, and prior record.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • JIRS statistics have significant inherent limitations as a sentencing tool, particularly for offences covering a wide range of criminal conduct such as break, enter and steal under s 112(1) of the Crimes Act 1900.
  • As confirmed in Robertson v R and reaffirmed here, the principal reference points for sentencing remain the maximum penalty set by Parliament and the general principles of sentencing, not statistical comparisons with other cases.
  • The smaller the number of offender-specific variables used to filter JIRS data, the smaller and less representative the resulting statistical pool becomes, further reducing its utility.
  • A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 may be warranted where there is a demonstrated need for ongoing institutional support to assist rehabilitation, even where other factors do not strongly favour the offender.
  • In dismissing the appeal, the Court found that the sentencing judge's exercise of discretion was within permissible bounds and that no error justifying appellate intervention had been established.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1) (break, enter and steal)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(d), 21A(2)(g), 21A(3), 44

Cases
- R v McNaughton [2006] NSWCCA 242; 163 A Crim R 381
- Robertson v R [2007] NSWCCA 270; 177 A Crim R 121