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Court of Criminal Appeal 5 June 2019

Twaddell v R

[2019] NSWCCA 116

Theft & property
CRIMINAL LAW FORM 1 MATTERS SENTENCE

Citation: Twaddell v R [2019] NSWCCA 116
Court: NSW Court of Criminal Appeal
Date: 5 June 2019
Judges: Leeming JA; Ierace J; Hidden AJ

Background

The applicant pleaded guilty in the Local Court to two counts of breaking, entering and stealing and one count of aggravated breaking, entering and stealing, all committed in Cowra in 2016. Each offence had a related matter taken into account on a Form 1 (a procedural mechanism by which additional offences are acknowledged at sentencing without separate penalties being imposed). The applicant was familiar with one of the targeted premises, a St Vincent de Paul store, having previously volunteered there.

The District Court sentenced the applicant to an aggregate term of five years and six months imprisonment, with a non-parole period of three years, commencing 21 August 2016. A 25 per cent discount was applied for the utilitarian value of the early guilty pleas.

The applicant sought leave to appeal against sentence in the Court of Criminal Appeal. On the appeal, fresh evidence was received, including evidence relating to the applicant's intellectual disability.

  • Whether the sentencing judge erred by failing to properly assess the objective seriousness of the offences.
  • Whether new evidence, including evidence of an intellectual disability, should be received on appeal and what weight it should carry on re-sentence.
  • What aggregate sentence was appropriate having regard to the applicant's subjective case, including his intellectual disability, history of substance abuse, and the need to foster rehabilitation.

Decision

The Court granted leave to appeal and found error in the sentencing below. The sentencing judge had not adequately assessed the objective gravity of the offences, which required correction. The Court proceeded to re-sentence the applicant.

On re-sentence, the Court received fresh evidence, including evidence establishing the applicant's intellectual disability. This evidence was relevant both to moral culpability and to the prospects of rehabilitation, and the Court took it into account in mitigation.

In assessing objective seriousness, the Court placed each of the three offences below the mid-range, though not markedly so. The offences involved deliberate planning and significant property damage. The stolen amounts were modest, and the underlying offence (stealing) sits relatively low within the range of serious indictable offences. However, the applicant's use of inside knowledge of the St Vincent de Paul premises added to the gravity of those offences.

The Court also noted that, by the time of the appeal hearing, the applicant had already served approximately two years and eight months of the original three-year non-parole period. A reduced aggregate sentence of four years and six months, with a non-parole period of two years and nine months, was imposed. That non-parole period had already expired, making the applicant immediately eligible for release on parole.

Orders Made

  • Leave to appeal granted and the appeal allowed.
  • The sentence passed in the District Court is quashed.
  • In lieu, the applicant is sentenced to an aggregate term of imprisonment of four years and six months commencing on 21 August 2016 and expiring on 20 February 2021, with a non-parole period of two years and nine months expiring on 20 May 2019.
  • The applicant is eligible for release on parole immediately.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge must expressly and adequately assess the objective seriousness of each offence; failure to do so can constitute error warranting intervention on appeal.
  • Fresh evidence of an intellectual disability, not placed before the original sentencing court, may be received on appeal and can carry significant weight in mitigation, particularly in relation to moral culpability and rehabilitation prospects.
  • Where an offence involves breaking, entering and stealing, the gravity of the underlying stolen property offence (stealing, rather than a more serious crime committed on the premises) is a relevant consideration in calibrating objective seriousness.
  • Form 1 matters are taken into account in arriving at the overall sentence; they do not attract separate penalties but remain relevant to the weight of the overall sentencing exercise.
  • Significant delay between original sentencing and the appeal hearing, resulting in a non-parole period that has already expired by the time of re-sentence, is a practical matter the Court of Criminal Appeal must account for when framing orders.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1)(a) (breaking, entering and stealing, maximum 14 years)
- Crimes Act 1900 (NSW), s 112(2) (aggravated breaking, entering and stealing, maximum 20 years; standard non-parole period of 5 years)
- Crimes Act 1900 (NSW), s 154F (stealing a motor vehicle, maximum 10 years)
- Crimes Act 1900 (NSW), s 189 (receiving stolen property, maximum 3 years)

Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Gal v R [2015] NSWCCA 242
- R v Van Ryn [2016] NSWCCA 1