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5
Court of Criminal Appeal 17 December 2009

Daniel FORBES v R

[2009] NSWCCA 292

Fraud & dishonestyTheft & property
CRIMINAL LAW AGGRAVATED BREAK, ENTER AND STEAL FACILITATE BOAT REBIRTHING FORM 1 MATTERS PAROLE PERIOD FIXED TERM NOT VALID FOR THAT OFFENCE

Citation: Daniel Forbes v R [2009] NSWCCA 292
Court: New South Wales Court of Criminal Appeal
Date: 17 December 2009
Judge(s): McClellan CJ at CL, Hidden J, McCallum J

Background

The applicant pleaded guilty in the District Court to two counts: aggravated break, enter and steal (a ram-raid on a shopping arcade in Bowral in which an ATM containing approximately $54,500 was stolen), and facilitating boat rebirthing (assisting in altering the identity of a stolen vessel). He also asked the court to take into account five further related offences on a Form 1, including theft of motor vehicles used in the ram-raid and receiving stolen boats.

The sentencing judge imposed 6 years and 8 months on the ram-raid count, with a non-parole period of 3 years and 4 months, accumulated by 3 months on the boat rebirthing count. The boat rebirthing count attracted a fixed term of 2 years with no non-parole period set. The applicant sought leave to appeal both sentences on several grounds.

The applicant had not been physically present at the arcade during the ram-raid itself, but was involved in planning and played a supporting role. His co-offender, Andrew Crowden, was identified as the ringleader of the group.

  • Whether the fixed term imposed on the boat rebirthing count was lawful, given that the offence carries a standard non-parole period under the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge applied the standard non-parole period correctly in respect of the aggravated break, enter and steal count
  • Whether the applicant's role in the joint criminal enterprise was properly assessed as less culpable than that of the ringleader
  • Whether the sentences were manifestly excessive
  • Whether parity with the co-offender's sentence warranted intervention

Decision

Count 2: Fixed term for boat rebirthing was invalid. The Court held immediately that the 2-year fixed term on the boat rebirthing count could not stand. Because that offence appears in the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999, it carries a standard non-parole period of 4 years. Section 45(1) of that Act removes the court's power to decline to set a non-parole period for any offence listed in the Table. A non-parole period must be set for such an offence, and the sentencing court had therefore erred in imposing a fixed term.

Count 1: Irregularity in approach to standard non-parole period, but no lesser sentence warranted. The Court accepted there was irregularity in the sentencing judge's approach to the standard non-parole period for the ram-raid offence. However, examining all circumstances, the Court was satisfied that no lesser sentence was warranted and declined to intervene on this ground.

Role in joint criminal enterprise and parity. The Court was not persuaded that the applicant's role was sufficiently distinct from the ringleader's to justify interference on parity grounds. While Crowden was the ringleader, the applicant was an active and knowing participant throughout. A comparison of global sentences was complicated by the fact that Crowden was also sentenced for unrelated matters not common to the applicant, making a clean parity analysis difficult. The Court found no legitimate sense of grievance arising from any disparity.

Manifest excess. Given a maximum of 14 years and a standard non-parole period of 4 years for the boat rebirthing offence, a total sentence of 2 years was not manifestly excessive. The Court set a non-parole period of 18 months, with a balance of term of 6 months, reflecting the early plea and the largely concurrent nature of the sentence.

Orders Made

  • Count 1: Leave to appeal granted; appeal dismissed.
  • Count 2: Leave to appeal granted; appeal allowed. Applicant re-sentenced to a non-parole period of 18 months commencing 20 March 2007 and expiring 19 September 2008, and a balance of term of 6 months commencing 20 September 2008 and expiring 19 March 2009.

Key Takeaways

  • Under s 45(1) of the Crimes (Sentencing Procedure) Act 1999, a court has no power to impose a fixed term without a non-parole period for any offence listed in the Table to Division 1A of Part 4. Where a standard non-parole period applies, a non-parole period must be set.
  • In dismissing the appeal on the ram-raid count, the Court of Criminal Appeal confirmed that identifiable irregularity in a sentencing judge's approach to a standard non-parole period does not automatically warrant intervention if the resulting sentence is not otherwise excessive.
  • Parity arguments comparing global sentences become significantly more complex where co-offenders were also sentenced for unrelated offences not shared by the applicant.
  • A lesser role in a joint criminal enterprise does not automatically translate to a materially different sentence where the applicant was an active and knowing participant at multiple stages of the offending.
  • Facilitating boat rebirthing under s 154G of the Crimes Act 1900 carries a standard non-parole period of 4 years and a maximum of 14 years, and was noted by the Court as an offence that had rarely been prosecuted at the time of this decision, with no settled pattern of sentencing yet established.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(2), 154A, 154F, 154G, 188, 195(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45 and Table to Div 1A of Pt 4
- Criminal Appeal Act 1912 (NSW)

Cases
- SGJ & KU v R [2008] NSWCCA 258
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Marshall v R [2007] NSWCCA 24
- R v Goundar [2001] NSWCCA 198; 127 A Crim R 331
- R v Breedon (CCA, unreported, 3 December 1992)
- R v DBN [2005] NSWCCA 435
- Douglas v R [2006] NSWCCA 94
- R v Lenthall [2004] NSWCCA 248
- R v Guthrie [2002] NSWCCA 77
- R v Ceissman [2004] NSWCCA 466