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Court of Criminal Appeal 14 March 2018

Buddle v R

[2018] NSWCCA 35

Theft & property
CRIMINAL LAW SENTENCE APPEAL BREAK, ENTER AND STEAL LONG CRIMINAL HISTORY NO ARGUABLE GROUND OF APPEAL LEAVE TO APPEAL REFUSED

Citation: Buddle v R [2018] NSWCCA 35
Court: NSW Court of Criminal Appeal
Date: 14 March 2018
Judges: Macfarlan JA, Johnson J, Campbell J

Background

The applicant pleaded guilty in the Wollongong District Court to two counts of break, enter and steal under s 112(1)(a) of the Crimes Act 1900. Both offences involved breaking through gyprock walls to access properties in the Wollongong region and stealing tools, a bicycle, and other items worth a combined approximate value of $8,100. Critically, the applicant committed both offences while on parole for earlier offences of the same kind.

The District Court imposed an aggregate sentence of three years and nine months, with a non-parole period of two years and eight months. The sentencing judge applied a 25% discount for early guilty pleas, backdated the sentence to the date the applicant entered custody, and made a finding of special circumstances to reduce the non-parole period. The applicant, then 48 years old, had a criminal history for property offences stretching back to 1984, including armed robbery in the late 1990s.

The applicant, self-represented before the Court of Criminal Appeal, sought leave to appeal that sentence. He had previously brought two sentence appeals to the same court, in 1998 and 2006.

  • Whether the sentencing judge gave sufficient weight to the guilty pleas and whether the variation to the non-parole period for special circumstances was adequate.
  • Whether the aggregate sentence was manifestly excessive.
  • Whether post-sentence changes in the applicant's personal circumstances (his mother's cancer diagnosis and difficulties concerning his sons) provided a basis for intervention on appeal.

Decision

The Court found no error in the sentencing judge's treatment of the guilty pleas. A 25% discount had been applied, and the non-parole period represented 71% of the head sentence following the special circumstances finding. Both approaches were open to the sentencing judge and were favourable to the applicant.

On manifest excess, the Court concluded that the aggregate sentence was not only reasonable but contained a significant element of leniency. The offences were aggravated by the fact that they were committed on parole for similar offences, and the applicant's lengthy history of break-and-enter offending did not assist him. The Court described the sentencing remarks as a model of clarity and fairness.

Regarding the post-sentence personal circumstances material, the Court received the documents but declined to act on them. Because no error in the original sentencing exercise had been established, there was no principled basis for the Court to take fresh personal circumstances material into account.

The Court also noted, in response to grounds raised in the original written submissions, that the applicant had been capably represented in the District Court. No arguable ground of appeal was identified across any of the three areas pressed by the applicant.

Orders Made

  • Leave to appeal against sentence refused.

Key Takeaways

  • In dismissing the application, the Court of Criminal Appeal confirmed that fresh personal circumstances material arising after sentencing cannot ground appellate intervention in the absence of an established error in the original sentencing exercise.
  • A non-parole period representing 71% of the head sentence, following a special circumstances finding, was held to be within the range properly open to the sentencing judge.
  • Committing offences while on parole for offences of the same kind remains a substantial aggravating factor that weighs heavily against an offender at sentence.
  • The Court noted that backdating a sentence to the date of entry into custody, combined with concurrence with the balance of a parole term, constituted a favourable sentencing outcome for the applicant.
  • No arguable ground of appeal was established where a 25% guilty plea discount had been applied, special circumstances had been found, and the aggregate sentence reflected the serious objective features of the offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1)(a)

Cases
- R v Buddle (Court of Criminal Appeal, Grove and Barr JJ, 22 June 1998)
- Buddle v R [2006] NSWCCA 236