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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: Court of Criminal Appeal
Date: 18 March 2022
Judges: Beech-Jones CJ at CL, Davies J, Bellew J

Background

The applicant pleaded guilty in the Local Court to a large number of offences involving entering commercial premises and stealing property, primarily targeting staff bags and cash registers at restaurants and other small businesses across Sydney. He adhered to those pleas in the District Court, where he was sentenced to an aggregate term of 6 years and 6 months imprisonment with a non-parole period of 3 years and 9 months.

Central to the conviction appeal was the fact that the applicant had pleaded guilty to offences under both section 114 of the Crimes Act 1900 (entering a building with intent to commit an indictable offence) and section 115 of the same Act (the same conduct, but committed after a prior conviction for an indictable offence). Four pairs of charges arose from identical facts, with the only additional element in each section 115 offence being the applicant's prior conviction for break, enter and steal.

The sentence appeal arose because the sentencing judge had applied an incorrect maximum penalty to the section 114 offences, citing 10 years imprisonment rather than the correct maximum of 7 years. The Crown conceded before the Court of Criminal Appeal that this error originated from an erroneous sentence summary it had provided to the sentencing judge.

Legal Issues

  • Whether sections 114 and 115 of the Crimes Act 1900 create two separate offences, or whether section 115 is merely an aggravated form of the section 114 offence
  • Whether a miscarriage of justice arose from the applicant pleading guilty to, and being sentenced on, both sets of offences arising from the same facts
  • Whether section 152 of the Criminal Procedure Act 1986 applies only where there has been a trial, or also where an accused pleads guilty in the Local Court and is committed for sentence
  • Whether the sentencing judge's application of the wrong maximum penalty for the section 114 offences required resentencing

Decision

Ground 1: Whether sections 114 and 115 create separate offences

The Court confirmed that sections 114 and 115 of the Crimes Act 1900 create separate and distinct offences, not an aggravated form of the same offence (at [6]-[7]). This conclusion was consistent with the earlier decision in R v Tillott (1991) 53 A Crim R 46, which the Court declined to distinguish on any relevant basis.

The applicant argued that Tillott applied only in trial scenarios, and that section 152 of the Criminal Procedure Act 1986 was not engaged where an accused had pleaded guilty in the Local Court. The Court rejected this distinction (at [60]-[61]). Section 152 mandates a sequential procedure: an accused must first be convicted of a section 114 offence before being arraigned on a section 115 charge. Because section 152 governs how the two charges are handled, it also confirms their status as separate offences. The applicant's challenge to his section 114 convictions was rejected (at [8]).

The Court also addressed the applicant's reliance on Pearce v R (1998) 194 CLR 610 and the argument that, because all elements of section 114 are encompassed by section 115, a plea in bar should have been available. Beech-Jones CJ at CL held that those principles give way to the operation of section 152, which would be rendered meaningless if a plea in bar were available in this context (at [8]).

Ground 2: Sentence appeal arising from incorrect maximum penalty

The Court upheld the sentence appeal. Both parties agreed that the correct maximum penalty for the section 114 offences was 7 years imprisonment, not the 10 years the sentencing judge had applied. Given the number of offences involved, the error had the capacity to infect the overall exercise of the sentencing discretion and was not merely technical (at [65]).

The Court resentenced the applicant, finding special circumstances by reason of the need for an extended parole period to support rehabilitation, particularly given that the applicant's offending was inextricably linked to drug addiction (at [72], [74]). The Court also considered the applicant's request for referral to the Drug Court but declined, as the proposed sentence exceeded the statutory threshold under the Drug Court Act 1998 (at [77]).

Observations on the duties of legal practitioners and the Crown

Bellew J reiterated observations made in Haines v R [2021] NSWCCA 149 and McGovern aka Lanesbury v R [2021] NSWCCA 176 about the responsibilities of all practitioners, and the Crown in particular, to provide accurate information to sentencing courts. Bellew J noted that District Court judges carry heavy caseloads and are entitled to expect accurate assistance from those appearing before them (at [69]).

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

Key Takeaways

  • Sections 114 and 115 of the Crimes Act 1900 create separate and distinct offences. Section 115 is not an aggravated form of section 114, and an accused can lawfully be convicted of both offences arising from the same underlying facts (at [6]-[7]).
  • Section 152 of the Criminal Procedure Act 1986 mandates a sequential process: a conviction under section 114 must precede any arraignment on a section 115 charge. This procedural structure is itself confirmation that the two provisions describe separate offences, not one offence with an aggravating variant (at [7]-[8]).
  • Where all elements of a lesser offence are encompassed by a greater offence, Pearce v R principles about double punishment remain relevant at the resentencing stage. Courts must avoid doubly punishing an offender for elements common to both offences, including when setting indicative sentences under an aggregate sentencing regime (at [9]-[10]).
  • An error in the maximum penalty cited by the Crown in a sentence summary, adopted by a sentencing judge, can infect the exercise of the sentencing discretion and justify resentencing where the error is not merely technical (at [65]).
  • In dismissing the conviction appeal but allowing the sentence appeal, the Court of Criminal Appeal repeated its concern that the Crown's obligation to act as a model litigant requires accurate material to be placed before sentencing courts, particularly in busy District Court lists where judges must rely on the accuracy of information provided by practitioners (at [69]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes Legislation Amendment (Sentencing) Act 1999 (NSW)
- Drug Court Act 1998 (NSW)
- Criminal Procedure Act 1986 (NSW)

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