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Court of Criminal Appeal 22 July 2015

Glare v R

[2015] NSWCCA 194

Theft & property
CRIMINAL LAW SENTENCING AGGREGATE SENTENCE ERROR DISCLOSED APPLICANT RE SENTENCED

Citation: Glare v R [2015] NSWCCA 194
Court: Court of Criminal Appeal
Date: 22 July 2015
Judge(s): Leeming JA, Hamill J, Fagan J

Background

The applicant pleaded guilty in the District Court at Albury to seven serious break and enter offences under the Crimes Act 1900 (NSW). The offences involved a series of burglaries at regional clubs, hotels and a café committed over two periods in late 2013 and early 2014. The applicant, who had minimal prior criminal history, had become addicted to methamphetamine, and the sentencing judge found this explained his rapid descent into serious offending.

The District Court imposed an aggregate sentence of three years with a non-parole period of one year and nine months. The sentencing judge found the applicant was entitled to a 40% discount for his guilty plea and cooperation with law enforcement, but applied that discount only to the aggregate starting point rather than to each of the indicative individual sentences.

The applicant sought leave to appeal on two grounds: first, that the plea discount had been applied at the wrong stage of the sentencing exercise; and second, that the sentence was disproportionate and failed to reflect parity with a co-offender. The Crown conceded that the first ground was established.

  • Whether a sentencing court imposing an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) must apply a guilty plea discount to each indicative individual sentence, rather than only to the aggregate starting point
  • Whether, in light of the error, a lesser aggregate sentence was warranted when the court exercised its re-sentencing discretion afresh
  • What weight should be given to principles of parity and proportionality in fixing the re-sentenced aggregate term

Decision

Hamill J, with whom Leeming JA and Fagan J agreed, held that the concession by the Crown was correctly made. Under s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), when a court imposes an aggregate sentence it must record indicative sentences for each individual offence. Those indicative sentences must themselves reflect the guilty plea discount. Applying the discount only to the aggregate starting point, as the District Court had done, constituted legal error.

Having identified the error, the Court exercised its re-sentencing discretion afresh. Hamill J found that the offences, while serious in nature and number, fell towards the lower end of the objective seriousness range. The aggravating factor of being "in company" was the least serious of the circumstances of aggravation defined in s 105A of the Crimes Act. The offending was largely unplanned and amateurish, and the applicant had no relevant prior criminal history before his addiction took hold.

In applying the principles of totality and concurrency, Hamill J indicated that the two groups of offences (counts 1 to 3 in October 2013, and counts 4 to 7 in March 2014) would attract roughly concurrent sentences within each group, with a modest accumulation of approximately three months between the two groups. After applying the 40% discount to each indicative sentence, the Court arrived at an aggregate sentence of two and a half years with a non-parole period of one year and three months.

Because the non-parole period had already expired by the time of the appeal, the Court ordered the applicant's immediate release on parole. The second ground of appeal, based on parity and proportionality, was not formally determined but the considerations raised under it informed the re-sentencing exercise.

Orders Made

  • Leave to appeal against sentence granted and appeal allowed.
  • Sentence imposed by the District Court quashed.
  • Applicant resentenced to an aggregate sentence comprising a non-parole period of one year and three months commencing 30 March 2014 and expiring 29 June 2015, with a balance of term of one year and three months commencing 30 June 2015 and expiring 29 September 2016.
  • Pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the applicant ordered to be released on parole at the conclusion of the non-parole period, with the Court noting the non-parole period had already expired and ordering immediate release.
  • Parole subject to standard conditions under the Crimes (Administration of Sentences) Act 1999 (NSW), including compliance with directions of the probation and parole service and any drug rehabilitation counselling directed by that service.

Key Takeaways

  • Under s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), when imposing an aggregate sentence a court must record indicative individual sentences that themselves incorporate any guilty plea discount. Applying the discount solely to the aggregate starting point constitutes legal error.
  • The Court of Criminal Appeal confirmed that the error in this case was not merely technical. It required the Court to set aside the original sentence and resentence the applicant entirely afresh, producing a materially different and shorter term.
  • Where a co-accused received a sentence of 18 months with a six-month non-parole period for related offending, parity and proportionality considerations informed the re-sentencing exercise, even though the second ground of appeal was not formally determined.
  • Being in company as the sole circumstance of aggravation under s 105A of the Crimes Act 1900 (NSW) places offending at the lower end of the aggravated break and enter range. The Court treated it as materially less serious than other circumstances of aggravation such as being armed, using violence, or knowingly entering occupied premises.
  • Totality principles require that where multiple offences are closely related in time and character, sentences should largely run concurrently, with accumulation reserved to reflect the distinct criminality of separate episodes of offending.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 50, 51, 53A
- Crimes Act 1900 (NSW), ss 105A, 112(2), 113(2)
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases:
- Attorney General's Application (No 1); R v Ponfield and Ors [1999] NSWCCA 435; 48 NSWLR 327
- Attorney General's Reference No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
- Green and Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Kentwell v The Queen [2014] HCA 37; 313 ALR 451
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- R v Cahill [2015] NSWCCA 53