Citation: R v Dillon [2004] NSWCCA 169
Court: NSW Court of Criminal Appeal
Date: 26 May 2004
Judge(s): Hulme J, Simpson J, Howie J
Background
The appellant pleaded guilty in the District Court to breaking and entering a dwelling house and stealing property, and to using a screwdriver as an offensive weapon with intent to resist lawful apprehension. Both offences occurred on 3 February 2003 in the Tuggerah area. Two further offences (driving unlicensed and larceny) were taken into account on a Form 1.
At the time of the offences, the appellant was subject to suspended sentences imposed by the County Court of Victoria and was also on bail for a further Victorian offence. He had an extensive prior record across two states, totalling over 110 offences including multiple entries for burglary, stealing, and assault.
District Court Judge Nield sentenced the appellant to a fixed term of 3 years for the offensive weapon offence and 6 years (with a non-parole period of 4 years and 6 months) for the burglary, resulting in an effective total sentence of 6 years and 6 months with a non-parole period of 5 years. The appellant sought leave to appeal against the severity of the sentence.
Legal Issues
- Whether the sentence imposed by Judge Nield for the breaking, entering and stealing offence was manifestly excessive in all the circumstances
- Whether the overall effective sentence was outside the range of a legitimate sentencing discretion, having regard to the appellant's personal circumstances, prior record, and the nature of the offending
Decision
Hulme J (with Simpson J and Howie J agreeing) acknowledged that the sentence imposed for the burglary was, by comparison with penalties generally imposed for that offence, a heavy one. However, it remained less than half the statutory maximum of 14 years, and the maximum penalty must be considered against the range of conduct the relevant provision covers.
The Court placed significant weight on the appellant's status as a recidivist. Prior sentences had plainly failed to deter his offending, and the deliberate decision to reoffend while on conditional liberty was treated as a seriously aggravating factor. The Court noted that community protection, while not unlimited in its sentencing weight, carried particular significance given the appellant's history.
Hulme J also observed that the offensive weapon offence was by no means minor, even though the effective term imposed for it was only six months. Even if the sentence on the burglary charge had been considered excessive (which the Court did not accept), the Court expressed that it would have been most unlikely to reduce the overall sentence in any event.
The Court concluded that the sentences imposed were well within the legitimate exercise of Judge Nield's sentencing discretion, and the appeal was dismissed.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a heavy sentence for breaking, entering and stealing remains available where an offender has a substantial prior record and reoffends while subject to conditional liberty.
- Deliberate reoffending while on suspended sentences and bail constitutes a seriously aggravating factor that can properly justify a sentence at the higher end of the range.
- A long history of prior offending is not treated as repunishment for past conduct; rather, it is relevant to the light in which current offending must be assessed, including the weight given to community protection.
- The existence of a mitigating factor, such as an early guilty plea attracting maximum discount, does not necessarily produce a lenient outcome where countervailing aggravating circumstances are strong.
- Where two offences are sentenced cumulatively and the effective overall sentence is within range, a court is unlikely to disturb the total even if one component might arguably be reconsidered in isolation.
Legislation and Cases Referenced
Cases:
- In the Matter of the Attorney General's Application (No 1) [1999] NSWCCA 435 (cited for the proposition that maximum penalties must be assessed in light of the range of conduct covered by the relevant offence provision)
Legislation:
- The judgment references the maximum penalties of 12 years (offensive weapon with intent to prevent lawful apprehension) and 14 years (breaking, entering and stealing) under the relevant NSW provisions, though specific section numbers were not identified in the text provided.