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Court of Criminal Appeal 16 December 2016

Dickinson v R

[2016] NSWCCA 301

Theft & property
CRIMINAL LAW SENTENCE APPEAL BREAK ENTER AND STEAL OFFENCES AGGREGATE SENTENCE COMMENCEMENT DATE OF SENTENCE.

Citation: Dickinson v R [2016] NSWCCA 301
Court: Court of Criminal Appeal, New South Wales
Date: 16 December 2016
Judge(s): Beazley P; Garling J; Hidden AJ (joint reasons by Hidden AJ)

Background

The appellant pleaded guilty in the District Court to four counts of break, enter and steal, with four further break, enter and steal offences and one attempted break, enter and steal taken into account on a Form 1 (a procedure under which additional offences are formally acknowledged but do not each carry a separate sentence). The offences were committed across Sydney between January and May 2014, targeting residential homes during daylight hours. Stolen property ranged in value from approximately $5,000 to $100,500 per offence, with jewellery featuring prominently across most incidents.

The District Court imposed an aggregate sentence of 7 years and 6 months with a non-parole period of 5 years, commencing 10 November 2014. The appellant was 28 at the time of the offending, had a prior record primarily for similar offences, and had been released on parole only three days before the first offence was committed. He had a history of heroin addiction, tracing back to the death of his mother from a heroin overdose when he was 13.

The appellant sought leave to appeal against the sentence, principally challenging the sentencing judge's characterisation of the objective gravity of the offences and contesting the commencement date of the aggregate sentence.

  • Whether the sentencing judge erred by treating the appellant's prior record for similar offences as relevant to the objective gravity of each offence (Ground 1)
  • Whether the sentencing judge erred in characterising each of the offences as "objectively very serious" (Ground 2)
  • Whether the sentencing judge fixed an incorrect commencement date for the aggregate sentence (Ground 3)

Decision

Ground 1: Prior record and objective gravity

The Court found that the sentencing judge fell into error on the first ground. Following R v McNaughton (2006) 66 NSWLR 566, the principle of proportionality requires that the upper boundary of a proportionate sentence be set by the objective circumstances of the offence, and those circumstances do not include prior convictions. A prior criminal record for similar offences is relevant to where, within that boundary, a sentence should fall, but it cannot elevate the objective seriousness of the offence itself. The sentencing judge's remarks conflated the Ponfield guideline factors, which pre-date s 21A of the Crimes (Sentencing Procedure) Act 1999 and the analysis in McNaughton, in a way that treated prior record as going to objective gravity.

Ground 2: Characterisation as "objectively very serious"

Despite the error on Ground 1, the Court did not accept that the characterisation of the offences as objectively very serious was itself wrong. The offences involved multiple residential burglaries, significant values of property stolen, some ransacking of homes, the commission of offences while on parole, and two occasions on which occupants were present. Considered in their totality and in light of the applicable Ponfield guidelines (properly applied), the objective gravity finding was open to the sentencing judge, and Ground 2 was not established.

Ground 3: Commencement date

The Court upheld this ground. The sentencing judge had commenced the aggregate sentence on 10 November 2014, apparently overlooking that the appellant had been held in custody on remand for these offences since his arrest on 10 May 2014. The correct commencement date was 10 September 2014, accounting for time already served. The error on Ground 3 enlivened the appellate jurisdiction, and the Court corrected the commencement date accordingly. The aggregate sentence and non-parole period were otherwise confirmed.

Drug Court referral

The Court also referred the appellant to the Drug Court for assessment as a possible subject of a compulsory drug treatment order under the Drug Court Act 1998, having been satisfied that the statutory duty under s 18B of that Act was engaged.

Orders Made

  • Leave to appeal granted and appeal allowed.
  • The aggregate sentence of 7 years and 6 months imposed in the District Court is confirmed, but directed to commence on 10 September 2014, comprising a non-parole period of 5 years (expiring 9 September 2019) and a balance of term of 2 years and 6 months (expiring 9 March 2022).
  • The appellant referred to the Drug Court for assessment as the subject of a compulsory drug treatment order.

Key Takeaways

  • Under the principle in R v McNaughton, an offender's prior criminal record for similar offences is not a factor going to the objective gravity of an offence; it remains relevant to where within the proportionate range a sentence should fall, but cannot raise the ceiling set by the objective circumstances.
  • The Court of Criminal Appeal confirmed that the Ponfield guidelines for break, enter and steal offences must be read consistently with the later framework in McNaughton and s 21A of the Crimes (Sentencing Procedure) Act 1999, particularly as to the role of prior convictions in sentencing analysis.
  • Characterising residential burglaries as objectively very serious remained open on the facts here, notwithstanding the error in the prior-record analysis, given the multiplicity of offences, values of stolen property, ransacking, offending while on parole, and the presence of occupants at two premises.
  • An incorrect commencement date for an aggregate sentence, which fails to account for time already spent on remand, constitutes a demonstrable error warranting appellate correction even where the length of the sentence itself is upheld.
  • Section 18B of the Drug Court Act 1998 imposes a duty on prescribed courts (including the Court of Criminal Appeal) to consider referring offenders to the Drug Court for assessment as subjects of a compulsory drug treatment order when the eligibility criteria may be met.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Drug Court Act 1998 (NSW), ss 5A(1), 18B
- Drug Court Regulation 2015 (NSW), cl 9(d)

Cases
- Baumer v The Queen (1988) 166 CLR 51
- Gal v R [2015] NSWCCA 242
- Mapp v R (2010) 206 A Crim R 497; [2010] NSWCCA 269
- Martin v R [2016] NSWCCA 104
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- R v Ponfield & Ors (1999) 48 NSWLR 327; [1999] NSWCCA 435
- R v Wickham [2004] NSWCCA 193
- Veen v The Queen (No 2) (1988) 164 CLR 465