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Court of Criminal Appeal 18 March 2022

Darcy v R

[2022] NSWCCA 54

Theft & property
CRIMINAL LAW OFFENCES SENTENCE APPEAL STATUTORY CONSTRUCTION LEAVE TO APPEAL GRANTED

Citation: Darcy v R [2022] NSWCCA 54
Court: NSW Court of Criminal Appeal
Date: 18 March 2022
Judge(s): Beech-Jones CJ at CL; Davies J; Bellew J

Background

The applicant pleaded guilty in the Local Court to four counts of entering a building with intent to commit an indictable offence under s 114(1)(d) of the Crimes Act 1900 (NSW), carrying a maximum of seven years imprisonment. He also pleaded guilty to four corresponding counts under s 115, which applies where a person with a prior indictable conviction commits an offence under s 114, carrying a maximum of ten years. Each pair of charges arose from the same facts, with the only additional element in the s 115 charges being the applicant's prior conviction for break, enter and steal in May 2018.

The matter proceeded to sentencing in the District Court. The sentencing judge, relying on erroneous information provided by the Crown, cited incorrect maximum penalties for the offences, an error that had the capacity to infect the exercise of the sentencing discretion.

The applicant brought two grounds of appeal: first, a conviction appeal arguing he should not have been convicted of both the s 114 and the s 115 offences (since all elements of s 114 are subsumed within s 115); and second, a sentence appeal based on the error in the maximum penalties applied.

  • Whether ss 114 and 115 of the Crimes Act 1900 create two separate offences, or whether s 115 is merely an aggravated form of s 114, such that convictions under both would constitute double jeopardy or an abuse of process.
  • Whether the applicant's pleas of guilty to both groups of offences gave rise to a miscarriage of justice.
  • Whether the sentencing judge's reliance on incorrect maximum penalty figures, provided by the Crown, constituted appealable error warranting resentencing.
  • How the principle against double punishment from Pearce v R (1998) 194 CLR 610 applied to the determination of individual indicative sentences where offences shared common elements.

Decision

Conviction ground: separate offences confirmed

The Court rejected the argument that the applicant's convictions under s 114 could not stand alongside his convictions under s 115. Beech-Jones CJ at CL, with whom the other judges agreed, held that ss 114 and 115 create distinct offences. The Court grounded this conclusion in the procedure mandated by s 152 of the Criminal Procedure Act 1986 (CPA), which requires an accused to be convicted of the s 114 offence first, and only then arraigned on an indictment charging the s 115 offence. That statutory procedure would be rendered meaningless if s 115 were merely an aggravated form of s 114.

The applicant invoked Pearce v R, citing a footnote in that decision suggesting a plea in bar would be available where one offence wholly includes the elements of another. The Court accepted that observation in principle but held it must yield to the specific operation of s 152 of the CPA. Because s 152 precludes arraignment on a s 115 charge until after conviction on the s 114 charge, a plea in bar to the s 114 count could never arise. Concerns about double jeopardy could not override the clear statutory regime.

Sentence ground: error in maximum penalties

The Court found that the sentencing judge had been provided with incorrect maximum penalty figures by the Crown and had proceeded to sentence on that erroneous basis. The Court accepted this error had the capacity to infect the exercise of the sentencing discretion, and leave to appeal against sentence was granted. The Court resentenced the applicant.

Avoiding double punishment on resentencing

Although the convictions under both sections were upheld, the Court confirmed that Pearce still required individual indicative sentences to be structured so as to avoid doubly punishing the applicant for the elements common to the s 114 and s 115 offences. Making sentences concurrent was not sufficient in itself to cure double punishment at the individual offence level. The indicative sentences proposed by Bellew J, and endorsed by the full Court, reflected this approach. The Court also noted that the applicant did not meet the eligibility criteria for referral to the Drug Court.

Orders Made

  • Leave to appeal against sentence granted.
  • The sentence appeal allowed.
  • The aggregate sentence imposed in the District Court quashed.
  • The applicant resentenced to an aggregate term of 6 years imprisonment, commencing 1 January 2020 and expiring 31 December 2025.
  • Non-parole period of 3 years and 4 months, commencing 1 January 2020 and expiring 30 April 2023.
  • The applicant eligible for release on parole on 30 April 2023, with sentence expiring 31 December 2025.

Key Takeaways

  • Sections 114 and 115 of the Crimes Act 1900 (NSW) create two separate offences; s 115 is not merely an aggravated form of s 114. The Court of Criminal Appeal confirmed this based on the distinct procedural regime mandated by s 152 of the Criminal Procedure Act 1986, which requires sequential arraignment and conviction.

  • The statutory procedure in s 152 of the CPA takes precedence over the general double jeopardy principle discussed in Pearce v R in the context of these particular offences. A plea in bar cannot operate in a way that would render s 152 a nullity.

  • Under Pearce v R, the prohibition on double punishment applies at the stage of fixing individual indicative sentences, not only at the stage of determining cumulation or concurrency. Making sentences concurrent does not, by itself, remedy double punishment for shared elements.

  • Where a sentencing court relies on incorrect maximum penalty figures provided by the Crown, and that error has the capacity to infect the sentencing discretion, the Court of Criminal Appeal may grant leave to appeal and resentence. The decision includes observations from the Court about the pressure on District Court judges and the consequent need for accurate material to be placed before sentencing courts.

  • In dismissing the conviction appeal, the Court confirmed that an accused who pleads guilty in the Local Court and is dealt with on sentence in the District Court under s 102 of the CPA is taken to have been convicted by a procedure conforming with s 152, even though that procedural provision is not strictly engaged when there is no contested trial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 114, 115
- Criminal Procedure Act 1986 (NSW), ss 25, 102, 152
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Crimes Legislation Amendment (Sentencing) Act 1999 (NSW)
- Drug Court Act 1998 (NSW)

Cases
- Pearce v R (1998) 194 CLR 610; [1998] HCA 57
- R v Tillott (1991) 53 A Crim R 46
- R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170
- R v Darcy [2020] NSWDC 824
- Haines v R [2021] NSWCCA 149
- McGovern aka Lanesbury v R [2021] NSWCCA 176
- Maldonado v R [2009] NSWCCA 189
- MM v R [2016] NSWCCA 235
- R v KCH [2001] NSWCCA 273
- R v Sagiv (1986) 22 A Crim R 73