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8
Court of Criminal Appeal 9 September 2015

Gal v R

[2015] NSWCCA 242

Theft & property
SENTENCE APPEAL BREAK AND ENTER NO REFERENCE TO FACTS OF OFFENCE ERROR DEMONSTRATED IF SENTENCING DISCRETION RE APPEAL DISMISSED.

Citation: Gal v R [2015] NSWCCA 242
Court: NSW Court of Criminal Appeal
Date: 9 September 2015
Judges: Bathurst CJ, Price J, Beech-Jones J

Background

The appellant was sentenced in the District Court on 6 August 2014 for two offences committed on 16 December 2012: breaking, entering and stealing from a residential property in Port Macquarie (count 1), and breaking, entering and stealing from a second residential property in circumstances of aggravation (count 2). The circumstance of aggravation for count 2 was that the appellant knew a person was present in the premises at the time. In that second break-in, the appellant was discovered crouching beside a sleeping teenager's bed, rifling through nearby drawers.

The maximum penalty for count 1 was 14 years imprisonment. Count 2 carried a maximum of 20 years and a standard non-parole period of five years. The appellant received a fixed term of 18 months for count 1, and a total term of five years with a non-parole period of two and a half years for count 2, resulting in a combined sentence of five years and six months with a total non-parole period of three years.

The appellant sought leave to appeal on the ground that the sentencing judge failed to assess, or at least failed to articulate, the objective seriousness of the offences when imposing sentence.

  • Whether the sentencing judge erred by failing to assess or expressly state the objective seriousness of the offences.
  • Whether any established error warranted a lesser sentence upon a fresh exercise of sentencing discretion.
  • Whether s 6(3) of the Criminal Appeal Act 1912 operated to prevent resentencing, on the basis that the same or a greater sentence would be appropriate.

Decision

Beech-Jones J (with whom Bathurst CJ and Price J agreed) found that error in the sentencing process was established. The sentencing judge had not addressed the objective seriousness of the offences in the reasons for sentence, and any references to seriousness appeared only in the course of argument rather than in the sentencing remarks themselves. This constituted a demonstrated error requiring the Court to consider whether a different sentence was warranted.

On a fresh assessment of the objective seriousness of each offence, the Court found that count 1 was a reasonably serious example of an offence under s 112(1) of the Crimes Act 1900. Several aggravating factors were present: the theft targeted Christmas presents and children's jewellery with clear sentimental value, the premises were likely occupied given the early morning timing, and the offences formed part of a series of incursions committed on the same day. Count 2 was assessed as below the middle range of objective seriousness for offences under s 112(2).

Beech-Jones J concluded that, in relation to count 1, a sentence exceeding that imposed by the sentencing judge would have been appropriate on a fresh exercise of the discretion. The sentence for count 2 would have remained the same. Because a greater or equal sentence would have resulted from resentencing, s 6(3) of the Criminal Appeal Act 1912 applied and the Court was not required to resentence the appellant. The appeal was accordingly dismissed despite the finding of error, following the principles in Kentwell v The Queen.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's failure to address or articulate the objective seriousness of an offence constitutes an error in the sentencing process, even where the topic arises during the course of argument.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal is not required to resentence an appellant where, on a fresh exercise of the sentencing discretion, the same or a greater sentence would be appropriate.
  • In dismissing the appeal despite finding error, the Court applied the principle from Kentwell v The Queen [2014] HCA 37 that an identified procedural error does not automatically yield a more favourable sentence for the appellant.
  • Aggravating features relevant to residential break and enter offences include the theft of items with sentimental value, the likelihood of occupation at the time of the offence, and the commission of multiple incursions on the same occasion.
  • The appellant's significant criminal history, including prior break and enter convictions as both a juvenile and an adult, and the commission of the offences while subject to a bond, were matters bearing on the overall sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 105A, 112(1), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 21A(2)(j)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Attorney General's Application (No 1) under s 26 of the Criminal Procedure Act, Re; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; 48 NSWLR 327
- Cowan v R [2015] NSWCCA 118
- Cullen v R [2014] NSWCCA 162
- Delaney v R; R v Delaney [2013] NSWCCA 150
- O'Grady v R [2015] NSWCCA 168
- Opacic v R [2013] NSWCCA 294
- R v Campbell [2014] NSWCCA 102