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Court of Criminal Appeal 11 September 2015

Hoskins v R

[2015] NSWCCA 245

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE BREAK, ENTER AND STEAL OFFENCES FORM 1 OFFENCES TAKEN INTO ACCOUNT AGGREGATE SENTENCE IMPOSED APPEAL ALLOWED

Citation: Hoskins v R [2015] NSWCCA 245
Court: Court of Criminal Appeal, NSW
Date: 11 September 2015
Judge(s): Hoeben CJ at CL, Hall J, Button J (reasons)

Background

The applicant, an Aboriginal man aged 36 at the time of sentencing, pleaded guilty in the District Court at Moree to two counts of breaking, entering and stealing in circumstances of aggravation (being in the company of another person). The offences occurred on consecutive days in May 2012. The first targeted a funeral home, where a television and stereo were stolen. The second targeted a private residence, where the applicant and a co-offender removed a substantial quantity of goods including electronics and power tools.

Sentenced by Judge Charteris on 3 April 2014, the applicant received an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999. Attached to the residential premises offence was a Form 1 document containing five further offences: one larceny and four break, enter and steal offences committed between April and December 2012.

The sentencing judge applied a total discount of 40 per cent from notional starting points. This reflected a 25 per cent discount for the utilitarian value of guilty pleas and an additional 15 per cent discount under the Ellis principle, because the applicant had voluntarily attended police, admitted all offences without being a suspect, and drove officers around the town identifying offence locations.

  • Whether the sentencing judge erred in placing the objective seriousness of the offences within the middle range.
  • Whether the sentencing judge misapplied the principles governing how Form 1 offences are to be taken into account at sentencing.
  • Whether the aggregate sentence was manifestly excessive.

Decision

The Court of Criminal Appeal, with Button J delivering reasons with which Hoeben CJ at CL and Hall J agreed, found error in the sentencing approach. The sentencing judge's assessment of objective seriousness was not sustained, and the treatment of the Form 1 offences was found to be flawed. These errors warranted re-sentencing rather than mere correction.

On the question of Form 1 treatment, the court applied established principles holding that Form 1 offences, while not to be treated as additional charges attracting separate sentences, must nonetheless be meaningfully reflected in the punishment imposed. The court found that the sentencing judge had not properly accounted for the number and nature of the five Form 1 offences, which included multiple residential burglaries.

In re-sentencing, Button J adopted a starting point of four years for the funeral home offence and five years for the residential premises offence (which carried the Form 1). A 40 per cent discount was applied to both, producing indicative head sentences of two years four months and three years respectively. Applying totality principles, the court arrived at an aggregate head sentence of four years with a non-parole period of two years, both commencing 26 May 2013.

The court also noted, with some emphasis, that the matter had languished in the list for over two years. By the time the appeal was heard in July 2015, the original non-parole period was only a few months from expiry. The court drew attention to existing mechanisms for fast-tracking appeals involving short non-parole periods, so that successful appeals are not rendered futile by delay.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Aggregate sentence of 3 April 2014 quashed.
  • Applicant resentenced to an aggregate head sentence of four years, commencing 26 May 2013 and expiring 25 May 2017.
  • Aggregate non-parole period of two years, commencing 26 May 2013 and expiring 25 May 2015.
  • Earliest possible date of release to parole declared as 25 May 2015.

Key Takeaways

  • The Court of Criminal Appeal confirmed that Form 1 offences must be meaningfully reflected in the aggregate sentence imposed, even though they do not attract separate penalties. A failure to give proper weight to the number and seriousness of Form 1 offences constitutes a sentencing error.
  • An Ellis discount (for voluntarily confessing to offences without being a suspect) operates alongside the utilitarian plea discount. Here, a combined 40 per cent discount was applied, with the two components treated as distinct in principle.
  • In quashing the original sentence, the court found the objective seriousness characterisation unsupportable on the facts, reinforcing that such assessments must be grounded in a careful analysis of the specific conduct and circumstances.
  • Totality principles remain operative when imposing aggregate sentences under s 53A of the Crimes (Sentencing Procedure) Act 1999. The final aggregate figure must reflect the overall criminality without being disproportionate.
  • Delays in hearing sentence appeals involving short non-parole periods risk making a successful outcome hollow. The court noted that fast-track mechanisms exist and ought to be used to prevent appeals being rendered otiose by the passage of time.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 109, 112(2), 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 32, 53A, 54B

Cases
- R v Ellis (1986) 6 NSWLR 603
- Alpha v R [2015] NSWCCA 225
- Browning v R [2015] NSWCCA 147
- Mitchell Allan v R; Mitchell Paul v R; Mitchell Michael v R [2014] NSWCCA 212
- Mulato v R [2006] NSWCCA 282
- R v Rae [2013] NSWCCA 9
- SHR v R [2014] NSWCCA 94
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146