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Court of Criminal Appeal 13 February 2013

Pettersen v R

[2013] NSWCCA 20

Theft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE CONSPIRACY ATTEMPT MULDROCK PRINCIPLES

Citation: Pettersen v R [2013] NSWCCA 20
Court: NSW Court of Criminal Appeal
Date: 13 February 2013
Judges: Beazley JA, Fullerton J, Beech-Jones J

Background

The applicant pleaded guilty in the District Court to two offences arising from separate incidents in 2011: a conspiracy to break and enter a commercial warehouse and steal goods in company (the conspiracy charge), and an attempt to commit an aggravated break, enter and steal at different commercial premises (the attempt charge). Both offences were serious property crimes involving surveillance, planning, and the company of co-offenders.

The sentencing judge treated the attempt charge as the principal offence, imposing a fixed term of 3 years and 9 months. The sentence on the conspiracy charge, 6 years with a non-parole period of 3 years, was partially accumulated, producing an effective sentence of 7 years and 3 months with a non-parole period of 4 years and 3 months.

The applicant sought leave to appeal only against the sentence on the conspiracy charge, contending that the sentencing judge had proceeded on a fundamentally incorrect legal basis in fixing that sentence.

  • Whether the sentencing judge erred by treating the conspiracy charge as an offence under s 112(2) of the Crimes Act 1900, carrying a statutory maximum of 20 years imprisonment and a standard non-parole period of 5 years, when a conspiracy to commit an indictable offence is in fact a common law misdemeanour to which no statutory maximum or standard non-parole period applies
  • Whether that misdescription and the erroneous reference to a standard non-parole period had a material impact on the sentence imposed
  • Whether, even if error were established, a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912

Decision

The Crown conceded, and the Court accepted, that the conspiracy charge had been misdescribed from the outset. The Court Attendance Notice incorrectly cited s 112(2) of the Crimes Act 1900, and this error was carried uncorrected through the Local Court plea, the District Court proceedings, and the Crown's own sentencing submissions. A conspiracy to commit an indictable offence is a common law misdemeanour: no statutory maximum penalty and no standard non-parole period apply. The correct approach is for the penalty to be at large, subject only to the requirement that it not be excessive, with the maximum for the substantive offence serving as a yardstick rather than a binding ceiling.

Despite the Crown's concession that leave to appeal was appropriate, it maintained that the sentence fell within an available discretionary range and that the Court should decline to intervene. The Crown further submitted that, even if error infected the sentence, no other sentence was warranted in law.

Fullerton J, with whom Beazley JA agreed, found that the sentencing judge's reasons revealed an approach consistent with the principles in Muldrock v R [2011] HCA 39. The judge had not given preponderant weight to the standard non-parole period; rather, the reference to it was no more than one of several factors taken into account. Having regard to the objective seriousness of the offending (extended planning, surveillance, acquisition of tools, and involvement in company), the applicant's prior conviction for an analogous offence committed while on parole, and the absence of meaningful mitigation, the Court concluded that the error had no material impact on the outcome. A non-parole period of 3 years on the conspiracy charge, after a finding of special circumstances, was described as reflecting a generous measure of leniency.

Beech-Jones J agreed, observing that while a reference to a non-existent standard non-parole period would ordinarily represent a strong foundation for an appeal, the circumstances here demonstrated that the reference had no material effect on the sentence determined. His Honour also concluded, independently, that no lesser sentence was warranted even if error had been established.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A conspiracy to commit an indictable offence is a common law misdemeanour; no statutory maximum penalty and no standard non-parole period apply, and the penalty is otherwise at large subject to the requirement that it not be excessive.
  • The maximum penalty for the substantive offence operates only as a reference point or yardstick for sentencing a conspiracy charge, not as a binding upper limit carrying an associated standard non-parole period.
  • Referencing a standard non-parole period where none exists will ordinarily constitute a strong basis for appellate intervention, but such error will not lead to resentencing unless it is shown to have had a material impact on the sentence actually imposed.
  • Under s 6(3) of the Criminal Appeal Act 1912, even where sentencing error is established, the Court of Criminal Appeal will not intervene if no other sentence is warranted in law on the evidence.
  • In dismissing the appeal, the Court of Criminal Appeal applied Muldrock v R [2011] HCA 39 in confirming that a standard non-parole period, where it applies, functions as a guidepost to be weighed alongside all other relevant factors, rather than as a dominant or determinative figure.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(2), 113(2), 154A(1)(a), 344A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Muldrock v R [2011] HCA 39; 244 CLR 120
- Bell v R: Jelisavac v R [2009] NSWCCA 206
- Savvas (No 2) v R (1991) 58 A Crim R 174
- Markarian v R [2005] HCA 25; 228 CLR 357
- Butler v R [2012] NSWCCA 23
- Diesing v R [2007] NSWCCA 326
- R v Ehrlich [2012] NSWCCA 38
- Stewart v R [2012] NSWCCA 183
- Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458