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Court of Criminal Appeal 24 February 2010

France v R

[2010] NSWCCA 24

Theft & property
CRIMINAL LAW SENTENCE BREAK, ENTER AND STEAL PRINCIPLE OF TOTALITY WHETHER SENTENCE MANIFESTLY EXCESSIVE MINIMAL PROSPECT OF REHABILITATION.

Citation: France v R [2010] NSWCCA 24
Court: NSW Court of Criminal Appeal
Date: 24 February 2010
Judge(s): James J, Howie J, Davies J

Background

The applicant pleaded guilty to breaking and entering a David Jones department store in Newcastle in August 2007, stealing electronic goods valued at approximately $29,890. He had gained access through a multi-storey car park, cutting alarm sensors and forcing locked doors, before smashing glass display cabinets inside. DNA evidence linked him to the scene.

At the time of the offence, the applicant was on parole for a separate common assault conviction. He had an extensive criminal history dating back to 1988, including multiple prior offences of break, enter and steal. In January 2008, he was sentenced in the Local Court for further offences, serving custody from December 2007 until June 2008, and was arrested for the present offence just five days after that release.

In November 2008, the District Court sentenced the applicant to three years and nine months imprisonment with a non-parole period of two years, nine months and twenty-seven days, commencing from the date of his arrest in June 2008. The sentencing judge applied a 25% discount for the guilty plea and assessed the offence as falling below the mid-range of objective seriousness, but found that only full-time custody could satisfy the requirements of general and specific deterrence.

  • Whether the sentencing judge should have applied the totality principle by treating the earlier Local Court sentence as a prior period of imprisonment and adjusting the sentence accordingly
  • Whether the judge erred in not finding "special circumstances" to justify reducing the non-parole period below the statutory default ratio
  • Whether the overall sentence was manifestly excessive, having regard to the commercial nature of the premises and the combined effect of the two sentences

Decision

On the totality principle, the Court rejected the argument that the earlier Local Court sentence required a formal downward adjustment. The applicant had been released from that sentence before being arrested for the present offence, meaning the two sentences did not overlap in any operative way. There was no basis to treat the Local Court sentence as part of the same sentencing exercise. The totality principle requires a court to ensure that the overall sentence is not crushing or disproportionate, but that consideration did not assist the applicant on these facts.

On special circumstances, the Court found no error in the sentencing judge's refusal to reduce the non-parole period below the standard ratio. The only arguable basis for a special circumstances finding was the possibility of residential rehabilitation. The applicant's prospects for rehabilitation were assessed as extremely guarded, and his extensive criminal record independently justified a substantial non-parole period.

On manifest excess, the Court noted that several factors identified in R v Ponfield as enhancing objective seriousness were all present: the offence was committed on conditional liberty, it involved a degree of professional planning, it caused property damage, and the value of goods stolen was significant. Drawing on R v Clifford, the Court affirmed that heavy sentences are generally appropriate for repeat offenders who break into business premises, just as they are for domestic premises. A notional starting point of five years, reduced by a full 25% for the guilty plea, was not manifestly excessive in the circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The totality principle did not require the sentencing court to adjust the sentence downward where the earlier custodial term had already been fully served before the commencement of the fresh sentence.
  • A refusal to find special circumstances was upheld where the applicant's rehabilitation prospects were assessed as extremely guarded and his criminal history independently warranted a substantial non-parole period.
  • Confirming the approach in R v Clifford, the Court of Criminal Appeal reiterated that heavy sentences are appropriate for repeat offenders who break into business premises, not only residential ones.
  • In dismissing the appeal, the Court treated the applicant's commission of the offence while on conditional liberty, the degree of planning involved, and the value of the property stolen as all aggravating the seriousness of the offence.
  • No error was established in the sentencing judge's assessment that retribution, denunciation and community protection warranted the sentence imposed, given the applicant's long history of like offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Postiglione v The Queen (1997) 189 CLR 295
- R v Clifford [2008] NSWCCA 190
- R v MAK [2006] NSWCCA 381
- R v Ponfield (1999) 48 NSWLR 327