Citation: McKILLOP, Jamie Scott v R [2010] NSWCCA 126
Court: NSW Court of Criminal Appeal
Date: 11 June 2010
Judge(s): McClellan CJ at CL, James J, Rothman J
Background
The appellant was a professional burglar who was arrested following the execution of a search warrant at his home, where police seized approximately 4,500 items confirmed as stolen property valued in excess of $1.9 million. He was sentenced in the District Court by Conlon DCJ on 16 December 2008 for 15 counts of break, enter and steal and aggravated break, enter and steal under the Crimes Act 1900. A further 139 offences were listed on a Form 1, meaning the sentencing judge was asked to take them into account without recording separate convictions.
Many of the charged offences targeted elderly victims in their homes at night. Several counts involved the appellant spending considerable time inside occupied premises, and some were committed while he was serving a suspended sentence. The total sentence imposed was a non-parole period of 12 years, with an overall term of 17 years.
The appellant sought leave to appeal to the Court of Criminal Appeal, challenging the sentence on three grounds. Two grounds were ultimately abandoned as separate grounds during oral submissions, leaving the court to consider the overall sentence as a composite challenge.
Legal Issues
- Whether the sentencing judge erred in applying the totality principle (the requirement that the overall sentence reflect the total criminality without being crushing or disproportionate)
- Whether the sentencing judge erred in the method of accumulating individual sentences
- Whether the total sentence of 17 years (non-parole period of 12 years) was manifestly excessive
Decision
The Court of Criminal Appeal, in reasons delivered by Rothman J (with McClellan CJ at CL and James J agreeing), found no identifiable or manifest error in the sentence imposed. The court observed that Conlon DCJ faced an unusually difficult sentencing exercise: over 150 offences needed to be addressed, either directly or through the Form 1 mechanism. No individual sentence approached the statutory maximum for any single charge.
The court noted a striking contextual point: the total sentence imposed across all 15 charged offences was less than the maximum available for a single count of aggravated break, enter and steal (which carries a maximum of 20 years). The court reasoned that where a sentencing judge must account for more than 150 offences of this kind, a total sentence approaching the maximum for one such offence cannot be said to be disproportionate.
The court rejected the use of statistics to challenge the sentence, observing that the rarity of a sentence of this magnitude was more likely a product of the rarity of a sentencing exercise involving this volume of offences, rather than any error in approach. The totality principle, as articulated in the relevant High Court authority, was not offended by a sentence of this structure and magnitude.
On the question of accumulation method, the argument pointing to irrationality in the differentiation between individual sentences was noted but had been abandoned in oral submissions. The court characterised it as a counsel of perfection. The sentence was described as heavy but not crushing, and as appropriately reflecting personal deterrence and community protection.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a total sentence approaching the statutory maximum for a single offence is not manifestly excessive where the sentencing exercise involves well over 150 offences of that type.
- The totality principle requires that an overall sentence reflect the full weight of an offender's criminality without being crushing; the court found a 17-year head sentence with a 12-year non-parole period satisfied that standard in these circumstances.
- Sentencing statistics cannot be used to cap or replace the maximum sentence prescribed by parliament; their limited utility is especially apparent where the factual scenario generating the sentence is itself rare or unique.
- No error was established in the sentencing judge's method of accumulation, and a submission that the differentiation between individual sentences was irrational was characterised as a counsel of perfection that had been abandoned.
- Under the Form 1 procedure, a sentencing court may take into account a large number of uncharged offences, and the total weight of that criminality is a legitimate consideration in calibrating the overall sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 112(1) and 112(2)
Cases:
- Marshall v R [2007] NSWCCA 24
- Pearce v R [1998] HCA 57; (1998) 194 CLR 610
- Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
- R v Bavadra [2000] NSWCCA 292; (2000) 115 A Crim R 152
- R v Huynh [2005] NSWCCA 220
- R v MAK; R v MSK [2006] NSWCCA 381
- R v Ponfield (and related matters) [1999] NSWCCA 435; (1999) 48 NSWLR 327