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Court of Criminal Appeal 2 April 2014

Newton v R

[2014] NSWCCA 41

Theft & propertyTraffic & driving
CRIMINAL LAW SENTENCES TOTALITY PRINCIPLE ACCUMULATION OF SENTENCES BREAK AND ENTER DRIVE WHILST DISQUALIFIED

Citation: Newton v R [2014] NSWCCA 41
Court: Court of Criminal Appeal, NSW
Date: 2 April 2014
Judge(s): Macfarlan JA, Adamson J, Bellew J

Background

The appellant pleaded guilty in the District Court to breaking and entering a dwelling house and committing a serious indictable offence (stealing), contrary to s 112(1) of the Crimes Act 1900 (NSW). On 25 October 2012, he entered a granny flat at a home in Narellan and stole an iPod, mobile phone, $50 cash, and an unregistered trail bike. Most of the property was later recovered. A 25% discount was applied for the guilty plea.

The sentencing context was complex. The very day before the break and enter, the appellant had appeared before the Local Court for nine separate offences and received Intensive Correction Orders (ICOs) totalling 15 months. Those ICOs were revoked in December 2012 and replaced with custodial sentences. On the same day as the break and enter, the appellant also rode the stolen trail bike while disqualified from driving, for which he received a separate one-year sentence.

Judge Arnott sentenced the appellant to 3 years' imprisonment with a non-parole period of 18 months for the break and enter. The appellant sought leave to appeal on two grounds: that the sentencing judge misapplied the totality principle when accumulating sentences, and that the sentence was manifestly excessive.

  • Whether the sentencing judge failed to apply the totality principle correctly when structuring and accumulating the sentence for the break and enter alongside the earlier ICO offences and the driving whilst disqualified offence.
  • Whether the sentence of 3 years with an 18-month non-parole period was manifestly excessive in all the circumstances.

Decision

On the totality ground, Adamson J (with whom Macfarlan JA and Bellew J agreed) found that the sentencing judge had not misapprehended the submissions made on the appellant's behalf. The judge was aware that the driving whilst disqualified offence formed part of the same criminal episode and had structured the commencement date of the sentence with that in mind. The overall sentencing approach reflected a genuine engagement with totality principles.

The Court noted that the sentencing judge had, in practical terms, directed the sentence to commence from the expiry of the non-parole period for the driving offence, which had the effect of incorporating the ICO offences into the overall sentencing picture. This structural choice was consistent with the principle, drawn from Postiglione v The Queen, that a sentencing court should consider what the aggregate sentence would have been had all matters been dealt with together.

On manifest excess, the Court found no error. The starting point of four years (before the 25% guilty plea discount) was described as perhaps at the higher end of the appropriate range, but not excessive given the significant aggravating factors: the offence was committed while the appellant was on conditional liberty (having received the ICOs less than 24 hours earlier), and he had a very lengthy criminal record of similar offences. Both factors are identified as statutory aggravating circumstances under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999.

The Court also noted that the sentencing judge had adjusted the non-parole period downward from the statutory 75% ratio to 50%, deliberately increasing the period of post-release supervision on parole. Adamson J characterised this as a considered attempt to give the appellant a genuine prospect of addressing his longstanding drug addiction and pattern of recidivism, rather than evidence of error.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The totality principle requires a sentencing court to consider the aggregate effect of all sentences, including those already imposed for related or concurrent criminality, and to structure the new sentence so the overall result is not disproportionate.
  • A sentence is not manifestly excessive merely because it sits at the higher end of the available range, provided the sentencing judge has properly identified and weighed the relevant aggravating and mitigating factors.
  • Under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, committing an offence while on conditional liberty and having prior convictions for similar offences are both statutory aggravating factors that can properly justify a more substantial sentence.
  • Departing from the standard 75% non-parole ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999 is a legitimate sentencing tool and, in this case, reflected a deliberate choice to extend post-release supervision rather than time in custody.
  • No error in the exercise of sentencing discretion arises merely because a court structures a sentence to begin from the expiry of a related sentence, provided the reasoning discloses genuine consideration of totality.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- R v Hayes [1984] 1 NSWLR 740
- R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159