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Court of Criminal Appeal 4 June 2010

Sampson v R

[2010] NSWCCA 119

Fraud & dishonestyTheft & property
CRIMINAL LAW PARTICULAR OFFENCES PROPERTY OFFENCES BREAK, ENTER AND STEAL IN COMPANY KNOWINGLY DEAL IN THE PROCEEDS OF CRIME OTHER OFFENCES

Citation: Sampson v R [2010] NSWCCA 119
Court: NSW Court of Criminal Appeal
Date: 4 June 2010
Judge(s): James J, Simpson J, Barr AJ

Background

The applicant pleaded guilty in the District Court to five counts of aggravated break, enter and steal and one count of knowingly dealing in the proceeds of crime. The offending took place over an intensive three-month period from May to August 2007, targeting electronics retailers including Domayne and Harvey Norman stores, as well as residential premises. The stolen goods were valued in the tens of thousands of dollars across multiple incidents, and the applicant also used proceeds to purchase a motor vehicle registered in his mother's name.

Judge Sides in the District Court sentenced the applicant individually on each of the six substantive counts, staggering commencement dates by accumulating sentences one year at a time. Eight further offences on a Form 1 (including three additional break, enter and steal offences) were taken into account in the sentence on count 2. The total effective sentence was a non-parole period of seven and a half years from 22 August 2007, with a balance of term of three and a half years, making the total term eleven years expiring on 21 August 2018.

The applicant sought leave to appeal against the severity of the sentences. He did not challenge any individual sentence as excessive. His complaints focused on two issues: alleged disparity with the sentence imposed on a co-offender, and the extent of accumulation leading to what he argued was an excessive total.

  • Whether the sentence imposed on the applicant was disproportionately higher than the sentence received by co-offender Bobby Delaney for the same offence, giving rise to a parity ground of appeal.
  • Whether the degree of accumulation of individual sentences was excessive such that the total sentence offended the principle of totality.

Decision

Parity with the co-offender

The applicant and Delaney were both sentenced for count 2, the Domayne Campbelltown break-in. The applicant received seven years with a non-parole period of three and a half years; Delaney received five years with a non-parole period of one year. Simpson J acknowledged the significant discrepancy but examined why it arose. The two offenders received identical sentences on count 3, the Harvey Norman Moss Vale break-in, which satisfied the Court that the sentencing judge had calibrated count 2 specifically to reflect the Form 1 offences.

For the applicant, the Form 1 included eight further offences, three of which were serious aggravated break, enter and steal offences. For Delaney, the Form 1 contained a single larceny of a motor vehicle committed on the same day as the substantive offence. Although Delaney's offending occurred while he was on conditional liberty, the Court found that did not provide a complete counterweight to the severity and number of the applicant's Form 1 offences. The sentence selected was found to be appropriate and well within the available range.

Totality and extent of accumulation

The Court acknowledged that an eleven-year sentence with a non-parole period of seven and a half years is a lengthy sentence for an offender who was twenty years old at the time of the offending and twenty-two at sentencing. The Court was mindful of the applicant's prior record when weighing this. However, the Court emphasised the nature and extent of the criminality: these were significant commercial and residential break-ins yielding substantial property values over a concentrated period.

Simpson J accepted that a lesser degree of accumulation may have been available to the sentencing judge, but that was not the test. The question was whether the accumulation chosen fell outside the sentencing discretion. The Court concluded it did not, and declined to intervene.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A significant disparity between sentences imposed on co-offenders does not automatically establish a parity error. The Court of Criminal Appeal confirmed that differences in Form 1 offences taken into account can legitimately explain substantial sentencing differences, even where co-offenders are sentenced for identical substantive counts.
  • Where two co-offenders receive identical sentences on one common count but different sentences on another, that identity can indicate the sentencing judge appropriately distinguished the two offenders' overall criminality rather than acting inconsistently.
  • Under the totality principle, the relevant question on appeal is not whether a lesser degree of accumulation was open to the sentencing judge, but whether the accumulation adopted fell outside the available sentencing discretion. The mere availability of a less severe outcome does not establish appealable error.
  • Intensive periods of serious commercial burglary, particularly those involving multiple premises and substantial property values, can support lengthy cumulative sentences even for relatively young offenders.
  • In dismissing the appeal, the Court reinforced that Form 1 offences taken into account at sentencing can carry considerable weight in determining the appropriate sentence for the substantive count to which they attach.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2) (aggravated break, enter and steal, maximum 20 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A (standard non-parole periods); Pt 3 Div 3 (Form 1 procedure)
- Criminal Procedure Act 1986 (NSW), s 166(1)(b) (certificate procedure)

Cases
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Way [2004] NSWCCA 131; 60 NSWLR 168