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8
Court of Criminal Appeal 29 November 2011

Madden v R

[2011] NSWCCA 254

Theft & property
CRIMINAL LAW SERIOUS INDICTABLE OFFENCE OF STEALING PLEA OF GUILTY HISTORY OF INCARCERATION NO ERROR IN APPROACH DEMONSTRATED EMPHASIS ON THE STANDARD NON

Citation: Madden v R [2011] NSWCCA 254
Court: Court of Criminal Appeal, NSW
Date: 29 November 2011
Judge(s): Whealy JA, Simpson J, Hislop J

Background

The appellant pleaded guilty in the District Court to aggravated break, enter and commit a serious indictable offence (stealing), committed in company at a Marrickville post office in March 2008. The offence was not detected promptly: DNA analysis was delayed by resource issues at the Division of Analytical Laboratories, and the appellant was not arrested until November 2009, some 20 months after the offence. In the intervening period, he had been sentenced and served time for unrelated offences.

Berman DCJ sentenced the appellant to 4 years and 6 months' imprisonment, commencing 30 November 2009, with a non-parole period of 2 years and 6 months. His Honour applied a 25% discount for the guilty plea and found special circumstances justifying a longer-than-standard parole period.

The appellant sought leave to appeal, arguing that the sentencing judge had failed properly to account for the delay between the offence and arrest, and had not applied the totality principle in light of the sentences served in the interim.

  • Whether the sentencing judge failed to give adequate weight to the 20-month delay between the commission of the offence and the appellant's arrest.
  • Whether the sentencing judge erred by not applying the totality principle to account for the sentences already served for offences committed after the present offence.
  • Whether the sentencing judge fell into the error identified by the High Court in Muldrock v The Queen by treating the standard non-parole period as a de facto starting point rather than a legislative guidepost.

Decision

On the delay and totality grounds, the Court noted a threshold evidentiary problem: no information about the subsequent offences had been placed before Berman DCJ. Simpson J confirmed that it is not the role of a sentencing judge to conduct independent inquiries into other proceedings. Because the sentencing judge had no material on which to apply totality principles in relation to those offences, no error in approach was established.

The Court of Criminal Appeal obtained the details of those subsequent offences for the purposes of the appeal. On examining that material, Simpson J concluded that the offences (stealing from the person, retail theft, vehicle theft, common assault and property damage committed between March 2008 and February 2009) bore no connection to the present offence, and there was no real likelihood that concurrency or a reduced sentence would have been appropriate even had the material been before the sentencing judge.

On the Muldrock issue, which the Court raised of its own motion in fairness to the appellant, Simpson J acknowledged that the sentencing judge had made numerous references to the five-year standard non-parole period and had placed considerable emphasis on it. However, the Court concluded that no error of the kind identified in Muldrock had been demonstrated. Even after Muldrock, a sentencing judge is required to remain "mindful" of both the maximum penalty and the standard non-parole period as legislative guideposts. While the standard non-parole period cannot be treated as a starting point (particularly following a guilty plea), the sentencing judge's approach did not deflect him onto an erroneous course.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge is not required to make independent inquiries into an offender's other proceedings, and the absence of evidence about those matters before the sentencing judge will ordinarily defeat a ground of appeal based on totality.
  • In dismissing the appeal, the Court confirmed that the totality principle can only be applied meaningfully where adequate material about related sentences is placed before the sentencing court.
  • Under Muldrock v The Queen, the standard non-parole period is a legislative guidepost and not a starting point for sentencing, particularly following a plea of guilty; however, repeated references to it will not automatically constitute reversible error if the reasons as a whole disclose no fundamental misdirection.
  • No error was established merely because the sentencing judge referenced statistical data on sentences and emphasised the standard non-parole period in rejecting a submission that a sentence of around one year would suffice.
  • A 20-month delay between offence and arrest, caused by laboratory resource issues, is a relevant factor in sentencing, but its weight does not automatically reduce a sentence to a nominal term where the objective seriousness and the offender's history otherwise warrant a substantial term.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A; s 44(2)

Cases
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 (guilty plea discounts)
- Way v The Queen [2004] NSWCCA 131; 60 NSWLR 168 (standard non-parole period methodology)
- Muldrock v The Queen [2011] HCA 39 (standard non-parole period as guidepost, not starting point)