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District Court 8 February 2022

R v Thoral

[2022] NSWDC 73

Fraud & dishonestyTheft & property
CRIME APPEAL LARCENY SEVERITY OF SENTENCE APPEAL ALLOWED.

Citation: R v Thoral [2022] NSWDC 73
Court: District Court of New South Wales
Date: 8 February 2022
Judge: Neilson DCJ

Background

The appellant was arrested on 4 October 2021 in connection with two offences arising from the same series of events. On 6 September 2021, he used a master mailbox key to access a residential mailbox at a Sydney apartment building and stole a credit card addressed to the occupant. Four days later, he used that stolen card to purchase two packets of cigarettes for a total of $88.

The appellant first appeared in the Central Local Court on 6 October 2021, entering an initial plea of not guilty. When the matter returned on 9 November 2021, he entered guilty pleas to both charges: one count of larceny and one count of dishonestly obtaining a financial advantage by deception. The District Court noted this amounted to a plea entered at the earliest available opportunity.

Magistrate Williams imposed indicative sentences of five months for each offence, an aggregate term of nine months, and a non-parole period of six months commencing from the date of arrest. The appellant challenged that sentence on the grounds of its severity.

  • Whether the indicative sentences of five months for each offence were appropriate given the circumstances of the offending and the appellant's guilty plea
  • Whether the aggregate sentence of nine months and non-parole period of six months were excessive
  • Whether the commencement date of the sentence required adjustment in light of the appellant's pre-existing time in custody for unrelated matters

Decision

Neilson DCJ accepted that the appellant's guilty pleas were entered at the earliest available opportunity and that the second offence, using the stolen card to obtain $88 worth of cigarettes, sat at the very bottom of the range for dishonestly obtaining a financial advantage by deception. The District Court was nonetheless mindful that stealing a credit card carries the potential for significant detriment to the victim.

For the larceny charge, the District Court started with a head sentence of 12 months, taking into account the appellant's lengthy history of stealing offences. A 25% discount was applied for the early guilty plea, reducing the indicative sentence to nine months. For the deception charge, the Court imposed a fixed period of one month, again reflecting the guilty plea and the minimal value obtained.

While the two indicative sentences totalled 10 months, Neilson DCJ determined that an appropriate aggregate sentence was seven months, with a non-parole period of five months arrived at by applying the statutory formula and rounding down in the appellant's favour. The Court declined to post-date the sentence to account for the period the appellant spent in custody on a revoked parole, noting that the parole revocation was itself a direct consequence of the present offences.

The District Court also noted the appellant was part-way through a Short Sentence Intensive Program in custody, and he was encouraged to complete the remaining two weeks of that course.

Orders Made

  • The sentence imposed by the Central Local Court on 9 November 2021 was set aside
  • A non-parole period of five months was imposed, commencing 4 October 2021 and expiring 3 March 2022
  • A balance of term of two months was imposed, commencing on expiration of the non-parole period and expiring 3 May 2022
  • Total aggregate sentence: seven months
  • Indicative sentences: nine months (larceny, sequence 1) and one month (dishonestly obtaining financial advantage by deception, sequence 2)
  • No special circumstances were found

Key Takeaways

  • The District Court found that Magistrate Williams erred in both the indicative sentences and the aggregate sentence, warranting intervention on a severity appeal.
  • An early guilty plea, entered at the first available opportunity after the brief was served, attracted a 25% sentencing discount in this matter.
  • Where parole is revoked solely because of the offences being sentenced, a court may decline to post-date the sentence to commence after the arrest date, treating time already served as referable to the sentence.
  • The aggregate sentencing principle operated to reduce a combined indicative total of 10 months to an aggregate of seven months, with the non-parole period calculated by applying the statutory formula and rounding in the offender's favour.
  • Offending at the lower end of the range for dishonestly obtaining a financial advantage by deception, here the use of a stolen card for a purchase of $88, was reflected in a fixed indicative term of one month.

Legislation and Cases Referenced

Legislation:
- Provisions governing maximum penalties for larceny in the Local Court (two years imprisonment and/or 20 penalty units)
- Provisions governing maximum penalties for dishonestly obtaining a financial advantage by deception in the Local Court (two years imprisonment and/or 100 penalty units)
- Statutory formula for calculating non-parole periods (referenced but not specifically cited by name in the judgment)

Cases cited: None cited in the judgment.