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Court of Criminal Appeal 9 April 2020

Nicholls v R

[2020] NSWCCA 66

Theft & property
CRIMINAL LAW SENTENCING AGGRAVATED BREAK ENTER AND STEAL STEALING A MOTOR VEHICLE AGGREGATE SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Nicholls v R [2020] NSWCCA 66
Court: Court of Criminal Appeal, New South Wales
Date: 9 April 2020
Judge(s): Simpson AJA, Johnson J, Hamill J (reasons by Hamill J)

Background

The appellant pleaded guilty in the Local Court to one count of aggravated break, enter and steal (s 112(2), Crimes Act 1900) and one count of stealing a motor vehicle (s 154F, Crimes Act 1900). The aggravating circumstance for the break and enter was that the appellant knew a person was present inside the premises at the time. He also asked the sentencing court to take into account four Form 1 matters of dishonestly obtaining property by deception.

The offences arose from a single incident in August 2017. The appellant entered the backyard of a residential property in Sydney's western suburbs during the early hours of the morning, located spare keys hidden in a detached garage, used them to enter the house while the elderly victim slept, and stole the victim's wallet, shorts and Toyota Camry. He later used the victim's credit cards on four occasions totalling around $490.

The District Court imposed an aggregate sentence of 4 years and 9 months with a non-parole period of 3 years and 4 months. The appellant sought leave to appeal, contending that the sentencing judge had erred in assessing the objective gravity of the car theft, inadequately addressed the Form 1 offences, and imposed an overall sentence that was manifestly excessive.

  • Whether the sentencing judge adequately explained the basis for assessing the stealing of the motor vehicle as "just below the mid-range of objective criminality"
  • Whether that assessment of objective gravity was itself erroneous
  • Whether the sentencing judge's remarks on the Form 1 offences were legally adequate, raising a real possibility that correct principle was not applied
  • Whether the aggregate sentence of 4 years and 9 months was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal and upheld the appeal, finding error in the sentencing judge's assessment of the objective gravity of the motor vehicle theft. The Court found that characterising the stealing of the car as "just below mid-range" significantly overstated the seriousness of that offence in the circumstances. The vehicle was taken using keys found on the premises during the break and enter, was relatively modest in value, and was recovered undamaged. Hamill J concluded that a more appropriate starting point for that offence was 16 months imprisonment, rather than the 3-year sentence the primary judge indicated he would have imposed.

The Court also found that the sentencing judge's treatment of the Form 1 matters was legally inadequate, as the remarks did not demonstrate a sound application of the relevant principles. This represented a further, independent error.

Having found those errors, the Court re-sentenced the appellant. It took into account his youth (28 at sentence), his Aboriginal background, his significant mental health history (most likely schizoaffective disorder, with substance use disorder), and the psychiatrist's opinion that those conditions materially contributed to the offending. General deterrence was accorded reduced weight because of those conditions, though specific deterrence remained relevant. The 25% discount for the utilitarian value of the early guilty plea was maintained. The Court found special circumstances, given the partial accumulation of sentences and the desirability of an extended parole period to support rehabilitation.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Aggregate sentence imposed in the District Court quashed
  • For the offence of stealing a motor vehicle: fixed term of 12 months imprisonment, commencing 23 May 2018 and expiring 22 May 2019
  • For the offence of aggravated break, enter and steal: non-parole period of 2 years and 3 months commencing 23 November 2018 and expiring 22 February 2021, with a balance of term of 1 year and 1 month expiring 22 March 2022
  • The appellant to be eligible for release to parole at the expiration of the non-parole period for the aggravated break, enter and steal offence

Key Takeaways

  • Assessing the objective gravity of a motor vehicle theft as "just below mid-range" was an error where the vehicle was taken opportunistically using keys found on the premises, was of modest value, and was recovered undamaged. The Court of Criminal Appeal found the appropriate starting point was 16 months rather than 3 years.
  • A sentencing judge's remarks on Form 1 matters must sufficiently disclose the application of correct legal principle. Inadequate remarks on Form 1 offences can constitute independent error warranting re-sentence.
  • Where an offender has a diagnosed psychiatric condition that materially contributed to the offending, general deterrence is accorded diminished weight. Specific deterrence may nonetheless remain a relevant consideration.
  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 can be found where partial accumulation of sentences and the rehabilitation needs of a young offender with mental health and substance use issues warrant an extended parole period.
  • The total effective sentence on re-sentence was reduced from 4 years and 9 months (non-parole period 3 years and 4 months) to 3 years and 10 months (non-parole period 2 years and 9 months), reflecting the errors in assessing the car theft and the Form 1 matters.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(2), 154F
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A(2), 44, 53A(2), 54A
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Abbas & Others v R [2013] NSWCCA 115; 231 A Crim R 413
- Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Beale v R [2015] NSWCCA 120
- Burnett v R [2011] NSWCCA 276
- Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162
- Carroll v The Queen [2009] HCA 13; 254 ALR 379
- Davison v R [2019] NSWCCA 179
- JM v R [2014] NSWCCA 297
- Mulato v R [2006] NSWCCA 282
- Regina v Scott [2005] NSWCCA 51