AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 18 August 2017

Dittavong v R

[2017] NSWCCA 191

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE OFFENCE OF BREAK ENTER AND STEAL

Citation: Dittavong v R [2017] NSWCCA 191
Court: NSW Court of Criminal Appeal
Date: 18 August 2017
Judges: Gleeson JA, Harrison J, Button J

Background

The appellant pleaded guilty in Campbelltown Local Court to one count of break, enter and steal under s 112(1)(a) of the Crimes Act 1900. The offence involved forcibly entering a residential property in Villawood and stealing $20,000 worth of jewellery and an iPad. The appellant had been on parole at the time of the offence, though his parole had already been revoked before the offending occurred.

In the District Court at Parramatta, Judge Colefax sentenced the appellant to 3 years and 7 months imprisonment (the non-parole period) commencing 25 October 2016, with an additional term of 1 year and 3 months. The appeal challenged both the commencement date of the sentence and the overall severity.

  • Whether the sentencing judge breached the totality principle by setting an incorrect commencement date for the sentence
  • Whether the sentencing judge erred in declining to find special circumstances (which would justify extending the parole period beyond the standard one-third of the total sentence)
  • Whether the sentence was manifestly excessive

Decision

Ground 1: Commencement date. The Crown conceded that the sentence should have commenced on 10 February 2016, the date from which the appellant had been held in custody solely referable to the subject offence. The sentencing judge had instead fixed the commencement date at 25 October 2016, a backdating of only 106 days rather than the full period of relevant pre-sentence custody. The Court accepted the concession and intervened to correct this error.

The appellant also argued that the sentencing judge's remarks indicated an intention to make the sentence concurrent with part of the period during which he was serving out his revoked parole, and that the chosen start date was inconsistent with that intention. Harrison J found this contention difficult to follow and was unable to identify with sufficient clarity what the sentencing judge had actually intended. The contention was not accepted beyond the date correction the Crown had conceded.

Ground 2: Special circumstances. The Court agreed with Harrison J that no error was established in the sentencing judge's decision not to find special circumstances. No separate reasons were provided on this ground, with Button J simply agreeing with Harrison J.

Ground 3: Manifest excess. Button J observed that the sentence was a stern one and that the head sentence of almost 6 years and 6 months was approaching the upper range for a single break, enter and steal offence, particularly given the relatively straightforward manner in which it was committed. However, the appellant's extensive criminal history, including prior offences involving violence, the prior revocation of his parole, and a significant sentence imposed in 2008 for a more serious offence of the same type, meant that manifest excess had not been affirmatively established. The appeal on this ground was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Colefax SC DCJ on 7 February 2017 quashed
  • In substitution, the appellant sentenced to imprisonment with a non-parole period of 3 years and 7 months commencing 10 February 2016 and expiring 9 September 2019, with an additional term of 1 year and 3 months expiring 9 December 2020

Key Takeaways

  • Backdating a sentence to the date from which pre-sentence custody is solely referable to the subject offence is the usual and preferable course, as it precisely demonstrates that credit has been given: the Court confirmed that ss 24(a), 47(2)(a) and 47(3) of the Crimes (Sentencing Procedure) Act 1999 collectively require the sentencing court to account for that custody.
  • Where the Crown concedes an error in the commencement date of a sentence, the Court of Criminal Appeal will intervene to correct it even where other grounds of appeal do not succeed.
  • A manifestly excessive ground requires the appellant to affirmatively establish that the sentence falls outside the range open to the sentencing judge; a stern or high sentence alone does not satisfy that threshold.
  • Extensive criminal history, prior revocation of parole, and prior sentences for related serious offences are all relevant factors that can support a sentence approaching the upper range for a given offence.
  • Under the totality principle, a sentencing court must consider how a new sentence sits alongside existing custodial obligations, but the precise mechanism for doing so remains within the court's discretion provided the approach is reasoned and transparent.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24(a), 47(2)(a), 47(3)

Cases
- Buxton v R [2017] NSWCCA 169
- Dang v R [2014] NSWCCA 47
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R [2016] NSWCCA 255
- MD v R [2015] NSWCCA 37
- Prowse v R [2017] NSWCCA 68
- Salafia v R [2015] NSWCCA 141
- Wiggins v R [2010] NSWCCA 30
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64