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Court of Criminal Appeal 17 September 2010

Allan v Regina

[2010] NSWCCA 213

Theft & property
CRIMINAL LAW SENTENCING CROWN CONCESSION OF ERROR SENTENCE

Citation: Allan v Regina [2010] NSWCCA 213
Court: NSW Court of Criminal Appeal
Date: 17 September 2010
Judge(s): Simpson J, Hoeben J, Price J

Background

The applicant was tried in the District Court on an indictment charging him with break, enter and steal contrary to s 112(1) of the Crimes Act 1900, an offence carrying a maximum penalty of 14 years imprisonment with no standard non-parole period. The offence involved entering a dwelling house and stealing a laptop computer and a wallet containing approximately $45.

During the trial, the Crown prosecutor directed his opening and closing addresses to an aggravated version of the offence under s 112(2), which carries a maximum of 20 years and a standard non-parole period of 5 years. That more serious charge requires proof that the offender knew persons were present in the premises. Neither the trial judge nor defence counsel corrected this misapprehension, and the judge proceeded to sentence as though the jury had convicted on the aggravated charge.

The applicant had a significant criminal history, including five prior convictions for break, enter and steal, and had spent approximately 14 of the preceding 18 to 19 years in custody. He appealed against the sentence on the ground that the sentencing judge had applied the wrong maximum penalty and an inapplicable standard non-parole period.

  • Whether the sentencing judge erred by applying the maximum penalty and standard non-parole period for the aggravated offence under s 112(2), when the applicant had only been charged with and convicted of the less serious offence under s 112(1)
  • Whether, error having been established, a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912

Decision

The Crown properly conceded both grounds of appeal. The applicant had been sentenced for an offence more serious than the one on the indictment, which constituted clear error. The sentencing judge had incorrectly applied a maximum penalty of 20 years and a standard non-parole period of 5 years, neither of which was applicable to the s 112(1) charge.

The Court then turned to whether intervention was warranted. The Crown argued the sentence was not manifestly excessive even for a s 112(1) offence, pointing to sentencing patterns for repeat offenders committing break, enter and steal on domestic premises. The Court considered statistical material from the Judicial Commission and reviewed comparable sentences.

Price J, with whom Simpson J and Hoeben J agreed, concluded that a lesser sentence was warranted. The sentencing judge's assessment that the offence was at the lower end of the scale for s 112(1) was accepted, and none of the factors identified in R v Ponfield as enhancing seriousness were present. The Court also took into account a recent affidavit indicating the applicant was making some progress addressing his drug addiction. The total term was reduced from 4 years to 3 years 3 months, with special circumstances found to justify a longer than usual parole period.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 1 May 2009 quashed
  • Applicant re-sentenced to a non-parole period of 2 years commencing 3 April 2009 and expiring 2 April 2011, with a balance of term of 1 year 3 months commencing 3 April 2011 and expiring 2 July 2012
  • Parole conditions confirmed, including compliance with Probation and Parole Service directions, urinalysis, and attendance at a full-time drug and alcohol rehabilitation course

Key Takeaways

  • A sentencing court must sentence an offender only for the offence on the indictment; applying the maximum penalty and standard non-parole period of a more serious charge constitutes error, even where trial participants proceeded on a mistaken common assumption.
  • The Court of Criminal Appeal confirmed that establishing error does not automatically result in a reduced sentence: the question remains whether some other sentence is "warranted in law" under s 6(3) of the Criminal Appeal Act 1912.
  • Under s 112(1) of the Crimes Act 1900, no standard non-parole period applies, in contrast to the aggravated offence under s 112(2) which carries a 5-year standard non-parole period.
  • A repeat offending history does not, by itself, preclude a reduction in sentence where the original sentence was infected by jurisdictional error as to the offence charged.
  • The decision highlights the importance of careful attention to the precise terms of the indictment throughout the course of a criminal trial, as misapprehensions by any party can carry through to sentencing with significant consequences.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 112(1), 112(2), 105A(1)(f), 105A(2A)
- Criminal Appeal Act 1912 (NSW): s 6(3)

Cases
- Baxter v The Queen [2007] NSWCCA 237
- Morrison v R [2009] NSWCCA 211
- R v Harris [2007] NSWCCA 130
- R v McNaughton [2006] NSWCCA 242
- R v Ponfield [1999] NSWCCA 435