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Court of Criminal Appeal 3 May 2024

Tasker v R

[2024] NSWCCA 57

Theft & property
CRIME APPEALS APPEAL AGAINST SENTENCE APPEALS APPEAL AGAINST SENTENCE APPEALS

Citation: Tasker v R [2024] NSWCCA 57
Court: NSW Court of Criminal Appeal
Date: 3 May 2024
Judges: Bell CJ, Button J, McNaughton J

Background

The applicant pleaded guilty in the Downing Centre Local Court to two counts of break, enter and steal under s 112(1)(a) of the Crimes Act 1900 (NSW). The offences, committed about one month apart in December 2021 and January 2022, involved commercial premises and high-value goods. The first offence involved the theft of 78 laptop computers from a university; the second involved luxury goods worth over $464,000 from a retail store. Additional offences were taken into account under Form 1 schedules attached to each count (a Form 1 allows a court to take related offences into account on sentence without recording separate convictions).

The District Court sentenced the applicant to an aggregate term of 7 years and 6 months' imprisonment with a non-parole period of 5 years and 6 months, commencing 13 January 2022. The applicant had an extensive criminal history for similar offending and had previously been sentenced by the same judge in 2018.

The applicant sought leave to appeal on three grounds: that the sentencing judge denied him procedural fairness by relying on material not formally before the court; that the Form 1 offence was impermissibly used as an aggravating factor for the primary offence; and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge denied the applicant procedural fairness by referring to his own prior sentencing remarks from 2018, which were not formally tendered in the proceedings
  • Whether the sentencing judge erred by treating the Form 1 offence (a re-entry to the same premises) as an aggravating factor when assessing the objective seriousness of the primary offence, rather than confining its relevance to the Form 1 matter itself
  • Whether the degree of notional accumulation between the two indicative sentences produced an aggregate sentence that was manifestly excessive

Decision

Ground 1: Procedural fairness. The Court confirmed that while sentencing proceedings carry less formality and evidentiary precision than other proceedings under s 4 of the Evidence Act 1995 (NSW), the fundamental requirement of fairness is not displaced. The sentencing judge's decision to refer to his own prior sentencing remarks without formally providing them to the parties was described by Button J as "unorthodox" and something that "should be avoided." However, because the relevant passages were read aloud during the hearing and the parties had a sufficient opportunity to respond, including defence counsel expressing no objection, no practical injustice resulted. Ground 1 was not made out.

Ground 2: Form 1 as aggravation. The applicant argued that the sentencing judge had wrongly elevated the Form 1 offence (re-entering the same premises the next day) into an aggravating feature of the primary offence. Reading the sentencing remarks fairly and in context, the Court found the reference to re-entry as aggravation was directed at the seriousness of the Form 1 offence itself, justifying a significant increase to the indicative sentence for that matter. It was not applied to aggravate the primary count. Ground 2 was not made out.

Ground 3: Manifest excess. The Court considered whether the notional accumulation of indicative sentences was excessive. The two offences were discrete criminal acts separated by approximately one month, involving different premises and different victims, and could not be treated as a single episode of criminality. The Court took into account the sophistication and high value of the offending, the applicant's extensive criminal history, his limited rehabilitation prospects following a relapse into drug use shortly after completing his previous sentence, and the absence of significant mitigating factors beyond the guilty plea and expression of remorse. In those circumstances, the degree of accumulation was open to the sentencing judge and the aggregate sentence was neither unreasonable nor plainly unjust. Ground 3 was not made out.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Sentencing proceedings permit less formality than other proceedings, but that latitude does not override the requirement of procedural fairness; where a sentencing judge draws on material not formally tendered, the parties must have a genuine opportunity to address it.
  • A sentencing judge's reference to prior sentencing remarks delivered by the same judge in earlier proceedings involving the same offender is unorthodox and should be avoided, even where it ultimately causes no practical injustice.
  • Under the Form 1 scheme in the Crimes (Sentencing Procedure) Act 1999 (NSW), a Form 1 offence may properly justify a significant increase to the indicative sentence for that matter, but it must not be treated as an aggravating feature of the primary offence itself.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that where two offences are temporally proximate but involve separate premises, separate victims, and separate criminal acts, they need not be treated as a single episode of criminality for the purpose of assessing totality.
  • An extensive criminal history for like offending, limited rehabilitation prospects, and the absence of significant mitigating factors all support greater weight being given to both general and specific deterrence, and may justify a substantial degree of notional accumulation in an aggregate sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 111, 112, 117, 192E
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 33
- Evidence Act 1995 (NSW), s 4

Cases:
- HT v The Queen (2019) 269 CLR 403; [2019] HCA 40
- Munday v R [2017] NSWCCA 95
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- XY (A Pseudonym) v R [2023] NSWCCA 50
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Geagea v R [2020] NSWCCA 350
- GG v R [2023] NSWCCA 102
- Lee v R [2020] NSWCCA 244
- Noonan v R [2021] NSWCCA 35
- Weir v R [2011] NSWCCA 123