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Court of Criminal Appeal 17 August 2012

FLICK v R

[2012] NSWCCA 170

Theft & property
CRIMINAL LAW APPEAL SENTENCING ACCUMULATION AND TOTALITY SENTENCE FOR TWO SIMILAR OFFENCES

Citation: Flick v R [2012] NSWCCA 170
Court: Court of Criminal Appeal, New South Wales
Date: 17 August 2012
Judge(s): Simpson J, Blanch J, Rothman J

Background

The applicant pleaded guilty in the District Court at Dubbo to two counts of aggravated break, enter and steal. Both offences were committed within a few hours of each other in the early morning of 10 June 2010, at separate private residences. The aggravating circumstance in each case was that persons were present in the premises at the time.

At the time of the offences, the applicant was subject to a suspended sentence imposed in March 2010 for two larceny offences. That suspended sentence was subsequently activated, and he received concurrent one-year terms for those matters commencing 15 September 2010. The sentencing judge in the District Court structured the sentences for the two burglaries so that they were substantially accumulated on top of that earlier larceny sentence.

The applicant sought leave to appeal against the sentences imposed on 17 December 2010, arguing that the sentencing structure was affected by error, particularly in relation to accumulation and the application of the totality principle.

  • Whether the sentencing judge erred in accumulating the sentences for the two burglary offences upon the non-parole period of the pre-existing larceny sentence
  • Whether the totality principle was correctly applied when determining the overall sentence
  • Whether the sentences imposed for the two individual counts were appropriately proportioned to each other, given their connection through the Form 1 offences
  • Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to warrant a variation in the ratio of non-parole period to head sentence

Decision

The court granted leave to appeal and allowed the appeal, though the bench was not unanimous in its approach. Simpson J expressed disagreement with the methodology adopted by Rothman J. Blanch J agreed with the orders proposed by Rothman J. Rothman J delivered the substantive reasoning that ultimately carried the bench.

On the question of accumulation and totality, Rothman J considered that the original sentencing structure created a degree of cumulation with the pre-existing larceny sentence that was excessive in the circumstances. The totality principle, as explained by the High Court in Pearce v The Queen, requires that where multiple sentences are being served, the combined effect must not be disproportionate to the overall criminality involved. In re-sentencing, Rothman J adjusted the sentences to allow for greater concurrency with the larceny sentence.

Rothman J also found that the disparity between the two individual sentences, one of 3 years 9 months and one of 3 years, required reconsideration. Both offences were closely related in time and circumstance, and the Form 1 offences (which were taken into account with the first count) did not, in his Honour's view, justify as large a differential as the original sentencing created. The sentences were restructured accordingly.

Special circumstances were found to exist, and the non-parole period for the second count was adjusted to reflect the cumulative effect of the sentence structure and to allow for an appropriate parole period.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The sentence imposed by Woods ADCJ on 17 December 2010 was quashed and replaced as follows:
  • Count 1 (aggravated break, enter and steal, 9 or 10 June 2010, taking into account Form 1 offences): non-parole period of 2 years commencing 15 December 2010 and concluding 14 December 2012, with a remainder of term of 15 months concluding 14 March 2014
  • Count 2 (aggravated break, enter and steal, 10 June 2010): non-parole period of 12 months commencing 15 March 2012 and concluding 14 March 2013, with a remainder of term of 2 years concluding 14 March 2015
  • Overall sentence: 4 years and 3 months commencing 15 December 2010 and concluding 14 March 2015, with a non-parole period of 2 years and 3 months concluding 14 March 2013; first eligible for parole from 14 March 2013

Key Takeaways

  • The totality principle requires a sentencing court to consider the combined effect of all sentences a person will serve, including pre-existing sentences, and to ensure the aggregate is not disproportionate to the overall criminality involved.
  • Where two offences are closely connected in time and circumstance, significant disparity between the individual sentences requires careful justification, particularly where Form 1 offences relied upon to inflate one count are themselves connected to the charged conduct.
  • Under the framework confirmed in Pearce v The Queen, a court re-sentencing after a finding of error in accumulation may adjust sentences to allow for greater concurrency with a sentence already being served.
  • A finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 can be used to adjust the non-parole period in one count to account for the cumulative effect of a series of sentences, even where the offender has expressed disinterest in parole supervision.
  • The standard non-parole period for aggravated break, enter and steal remains a relevant reference point even where pleas of guilty are entered, though it does not operate as a mandatory minimum: the sentencing court retains a full discretion guided by the objective and subjective circumstances of the case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, Pt 4 Div 1A, ss 9, 44(2)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518
- Green v The Queen; Quinn v The Queen [2011] HCA 49
- Hili v The Queen; Jones v The Queen [2010] HCA 45
- House v R (1936) 55 CLR 499
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Mill v The Queen (1988) 166 CLR 59
- Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Edwards (1996) 90 A Crim R 510
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Veen v R (No 2) (1988) 164 CLR 465