Citation: Warner (AKA Jeremy Pachenko) v Regina [2013] NSWCCA 10
Court: NSW Court of Criminal Appeal
Date: 13 February 2013
Judge(s): Hoeben JA, Davies J, Campbell J (Campbell J delivering the principal judgment)
Background
The appellant pleaded guilty at the first available opportunity to two charges of breaking and entering in company and stealing, contrary to s 112(2) of the Crimes Act 1900 (NSW). Both offences occurred on the same night in November 2010, at separate premises in the Northern Rivers and Tweed regions. The total value of property stolen across both break-ins was around $600. The plea to the first count also incorporated a Form 1 offence of receiving a small quantity of stolen property found in the van used that night.
The District Court sentenced the appellant to two consecutive terms of three years each, partially accumulated, with non-parole periods of two years and three months and eighteen months respectively. The appellant was also convicted of related traffic offences, for which no additional penalty was imposed.
The appellant sought leave to appeal, raising several grounds including that the sentencing judge made an error of principle in the way he structured and reasoned toward the sentences imposed.
Legal Issues
- Whether the sentencing judge adequately identified and addressed the appellant's criminal record and its relevance to the sentencing exercise
- Whether the sentencing judge sufficiently stated reasons for increasing or reducing the standard non-parole period, as required by s 54B(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether the sentences were manifestly excessive
- Whether the sentencing judge committed a Pearce error by reasoning from a predetermined overall sentence downward to individual sentences, rather than assessing each offence individually first
Decision
Campbell J (with whom Hoeben JA and Davies J agreed) dismissed the appeal, but identified a procedural error of principle in the sentencing judge's approach. His Honour found that the sentencing judge had inverted the proper Pearce sequence: rather than first assessing an appropriate sentence for each individual offence, then considering questions of concurrence or accumulation, and finally applying the totality principle as a check, the judge fixed a total sentence first and worked backwards to construct individual sentences to support that result.
On the other grounds, the Court was not persuaded that errors had been established sufficient to vitiate the sentences. The individual sentences were each independently warranted on the facts. The first sentence appropriately reflected the added criminality of the Form 1 offence, and some accumulation of the second sentence was necessary to provide effective additional punishment for the separate offending that night.
Despite identifying the Pearce error, the Court held that no other sentence was warranted in law. The two offences, while incidents of an overall episode of criminality engaging the totality principle, remained separate offences. Differentiation between them through different non-parole periods was permissible, and the partial accumulation appropriately reflected the additional criminality of the second break-in.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that the proper sentencing sequence requires a court to first assess an appropriate sentence for each offence individually, then address concurrence or accumulation, and finally apply totality as a moderating check. Reversing this sequence by fixing a total sentence first constitutes an error of principle.
- A Pearce error does not automatically result in resentencing. Where the individual sentences imposed were independently warranted, the Court of Criminal Appeal may decline to substitute a different sentence even after identifying the error of principle.
- Where multiple offences form part of an overall episode of criminality, the totality principle may be engaged, but this does not make the offences one and the same. Each offence must receive meaningful individual consideration before totality is applied.
- Incorporating a Form 1 offence into a head sentence justifies that sentence being somewhat more severe than it would otherwise be, to reflect the additional criminality being taken into account.
- Partial accumulation of sentences is an appropriate mechanism to ensure that a second discrete offence does not go effectively unpunished when sentences would otherwise largely overlap.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 53A, 54B(4), Division 1A of Part 4
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166
Cases:
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- R v Fernando (1992) 76 A Crim R 58
- R v Harris (2007) 171 A Crim R 267
- R v Merrin (2007) 174 A Crim R 100
- R v XX (2009) 195 A Crim R 38
- Dare v Pulham [1982] HCA 70; 148 CLR 658
- R v Logan [2012] QCA 210
- Gommesen v R [2012] NSWCCA 226
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704