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Court of Criminal Appeal 13 August 2012

R v Reilly; R v Smith

[2012] NSWCCA 166

Assault & violenceTheft & property
CRIMINAL LAW APPEAL SENTENCING OFFENDERS IN A 'RAM RAID' SENTENCE CUSTODY PARITY

Citation: Reilly; R v Smith v R [2012] NSWCCA 166
Court: Court of Criminal Appeal, NSW
Date: 13 August 2012
Judges: Basten JA, Price J, S. G. Campbell J

Background

Two co-offenders pleaded guilty to aggravated break and enter at a Target Country Store in Goonellabah on 23 January 2010, in what was described as a "ram raid." One offender drove a stolen Holden Commodore through the front glass doors of the store, and both entered and stole electronic goods worth over $4,000. The stolen vehicle was later destroyed by fire. Both offenders asked the sentencing judge to take into account two further offences on a Form 1: theft of the motor vehicle and damaging it by fire.

The sentencing judge in the District Court at Lismore imposed five-year terms of imprisonment on both offenders, though with different non-parole periods reflecting differences in their criminal histories. One offender had an extensive prior record, including previous terms of imprisonment for similar offending. The other had only minor prior convictions attracting fines.

Both offenders sought leave to appeal against their sentences in the Court of Criminal Appeal, raising several grounds between them. Their appeals were heard together given the co-offender relationship and the parity issues that arose.

  • Whether the sentencing judge failed to apply a discount for the utilitarian value of guilty pleas entered by each offender
  • Whether one offender's sentence was manifestly excessive
  • Whether the sentencing judge failed to give one offender credit for time spent in pre-sentence custody
  • Whether the sentencing judge erred in the manner in which he took Form 1 matters into account
  • Whether there was a parity problem between the two sentences
  • Whether the sentencing judge failed to take into account one offender's lack of significant prior convictions
  • Whether one offender had a justifiable sense of grievance arising from the disparity between the sentences

Decision

The Court of Criminal Appeal granted leave to appeal to both offenders and upheld both appeals, though to different extents. In the case of the offender with the more extensive criminal history, the appeal succeeded only on the limited ground that the sentence had not been backdated correctly to account for pre-sentence custody. The sentence length and non-parole period were otherwise confirmed.

In the case of the offender with minimal prior convictions, the Court found more substantial error. The sentencing judge had failed to give adequate weight to that offender's lack of significant criminal history, and this produced a sentence that, when considered alongside the co-offender's sentence, gave rise to a justifiable sense of grievance on the parity principle. The Court quashed that sentence and re-sentenced the offender.

On re-sentence, the Court applied a 25 per cent utilitarian discount for the guilty plea, found special circumstances warranting a longer parole period (given the offender's need for support in overcoming drug addiction upon release), and imposed a total term of 4 years 6 months with a non-parole period of 2 years 9 months. This represented a meaningful reduction from the original 5-year sentence with a 3-year non-parole period.

The Court's approach to the Form 1 offences and the plea discount reflected established principles: guilty pleas entered in the Local Court and maintained in the District Court attract a utilitarian discount, and Form 1 matters are to be properly considered as part of the overall sentencing exercise without treating them as additional charges attracting discrete penalties.

Orders Made

Smith:
- Leave to appeal granted
- Appeal upheld to a limited extent
- Sentence of 5 years with non-parole period of 3 years 9 months confirmed, but backdated to commence 22 July 2011; non-parole period to expire 21 April 2015; balance of term to expire 21 July 2016
- Earliest eligible parole date: 21 April 2015

Reilly:
- Leave to appeal granted
- Appeal upheld
- District Court sentence quashed
- Re-sentenced to a total term comprising a non-parole period of 2 years 9 months commencing 28 July 2011 and expiring 27 April 2014, with a balance of term of 1 year 9 months expiring 27 January 2016
- Earliest eligible parole date: 27 April 2014

Key Takeaways

  • The parity principle requires that co-offenders not be left with a justifiable sense of grievance about the disparity in their sentences. Where one offender has significantly fewer prior convictions, that distinction must be meaningfully reflected in the sentence imposed.
  • A sentencing judge's failure to give adequate credit for a guilty plea, particularly one entered at an early stage and maintained, constitutes appellable error.
  • Pre-sentence custody must be accurately credited when fixing the commencement date of a sentence. A failure to backdate the sentence to reflect actual time served in custody is an error that the Court of Criminal Appeal will correct, even where the sentence length is otherwise upheld.
  • Special circumstances justifying a departure from the standard ratio between non-parole period and balance of term can be established where an offender will require structured support to address drug dependency following release.
  • On re-sentence following a successful appeal, the Court of Criminal Appeal will apply the standard sentencing guideposts, including the maximum penalty, the standard non-parole period, and any applicable utilitarian discount, afresh.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): s 112(2) (aggravated break, enter and steal, maximum 20 years, standard non-parole period 5 years); s 113(2); s 154F (stealing a motor vehicle); s 154G; s 195(1)(b) (damaging a motor vehicle by fire)
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 9; s 12; s 37

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Devine v R [2009] NSWCCA 261
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- Forbes v R [2009] NSWCCA 292
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
- House v R [1936] HCA 40; (1936) 55 CLR 499
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
- R v English [2000] NSWCCA 245
- R v Ilbay [2000] NSWCCA 251
- R v Kollas and Mitchell [2002] NSWCCA 491
- R v Lawrence [2005] NSWCCA 91
- R v McHugh (1985) 1 NSWLR 588
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Timmis [2003] NSWCCA 158