Citation: Fitzgerald v R [2018] NSWCCA 170
Court: NSW Court of Criminal Appeal
Date: 6 August 2018
Judge(s): Hoeben CJ at CL, Price J, Davies J
Background
The applicant, a co-director of a landscaping business, pleaded guilty to three counts of aggravated break, enter and steal under s 112 of the Crimes Act 1900 (NSW). The offences occurred on 7, 9 and 11 October 2015, when she and her business partner entered a garden nursery and stole plants, pumps and filtration equipment valued at approximately $4,316. Police found some of the stolen items at work sites managed by the pair's company. A small amount of cannabis found during a search warrant was dealt with on a Form 1 (a procedure allowing the court to take additional matters into account when sentencing without imposing a separate penalty).
The applicant had a history of drug use and depression, a six-month-old child in her care, and prior convictions resulting in bonds and fines. She was on two s 10 bonds at the time of the offending. At sentencing in the District Court in April 2017, Acting Judge Delaney imposed fixed terms of 11 months for two counts and, for the third count (incorporating the Form 1), a sentence of 23 months with a 12-month non-parole period, all running concurrently.
The applicant sought leave to appeal on six grounds, challenging the sentencing process, the treatment of the Form 1, the plea discount, the finding of planning, and overall excessiveness.
Legal Issues
- Whether the sentencing judge improperly determined the mode of custody before fixing the length of the sentence
- Whether the head sentence for the count to which the Form 1 was attached was disproportionate relative to the fixed terms imposed for the other counts
- Whether the sentencing judge failed to apply a guilty plea discount to counts 1 and 2
- Whether the sentencing judge erred in finding that the offences involved "a significant degree of planning"
- Whether the overall sentences were manifestly excessive
Decision
On the first ground, the Court of Criminal Appeal found no error in the sentencing judge's approach. While the judge's reasons did not follow the textbook three-stage sequence (determining imprisonment is necessary, fixing the term, then determining how it is served), the Court held that a failure to structure reasons in that precise order does not itself demonstrate error. The critical question is whether genuine consideration was given to alternatives to full-time custody. Here, the sentencing judge had considered and rejected those alternatives on proper grounds.
On the Form 1 ground and the related irrationality argument, the Court found no error. The concurrent structure of the sentences meant the head sentence for count 3 did not operate to extend the applicant's overall exposure beyond what the other sentences already required. The Court also noted that a fixed term should be regarded as equivalent to a non-parole period for comparison purposes, and the relationship between the sentences was not irrational.
On the plea discount ground, the Court found the sentencing judge had considered all three offences together when calculating the discount for the early guilty plea, and there was no requirement to apply a separate discount to each count individually. On the planning ground, the Court upheld the sentencing judge's finding. The Agreed Facts established that the applicant and her co-offender selected specific plants according to what appeared to be a pre-prepared list, matching stolen items to work orders. That was a proper factual foundation for finding a significant degree of planning.
The Court rejected the manifest excess ground. Although the applicant's subjective case was strong (including her history of sexual abuse, mental health diagnoses, drug dependency, remorse, rehabilitation steps, and primary carer status), those matters had been weighed against the objective seriousness of the offending, which sat between low and mid-range. The concurrent structure and the finding of special circumstances (which reduced the parole ratio to 52%) indicated no error in the overall sentencing exercise.
Orders Made
- Leave to appeal granted
- Appeal dismissed
- Time not to count except for 49 days already served
- Sentence revised to expire 16 May 2020; non-parole period to expire 16 June 2019
Key Takeaways
- A sentencing judge's failure to structure reasons in strict three-stage sequence is not automatically an error; the Court of Criminal Appeal confirmed the operative question is whether genuine consideration of alternatives to full-time custody actually occurred.
- Where offences are sentenced concurrently, the head sentence attracting a Form 1 is not rendered disproportionate merely because it exceeds the fixed terms for other counts, particularly where fixed terms are treated as equivalent to non-parole periods for comparison.
- Applying a guilty plea discount across offences considered together, rather than count by count, does not constitute error in principle.
- A finding of "significant planning" was properly supported where stolen goods matched specific work orders held by the offender's business, even though the overall objective seriousness was assessed as between low- and mid-range.
- In dismissing the manifest excess ground, the Court balanced a compelling subjective case (childhood trauma, mental health, primary carer responsibilities, and rehabilitation) against the structured, repeated nature of the offending and breach of existing bonds.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) s 112
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5(1), 21A, 45
Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Douar v R [2005] NSWCCA 455
- Laycock v R [2017] NSWCCA 47
- McIntosh v R [2015] NSWCCA 184
- Moore v R [2016] NSWCCA 185
- Parente v R [2017] NSWCCA 284
- Paul Campbell v R [2018] NSWCCA 87
- R v Dunn [2004] NSWCCA 346
- R v Zamagias [2002] NSWCCA 17