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13
Court of Criminal Appeal 9 March 2001

R v HARRISON [2001] NSWCCA 79 revised - 28

[2001] NSWCCA 79

Also reported as (2001) 121 A Crim R 380
Theft & property
CRIMINAL LAW SENTENCING CROWN APPEAL BREAK ENTER AND STEAL RECEIVING SENTENCE MANIFESTLY LENIENT

Citation: R v Harrison [2001] NSWCCA 79
Court: NSW Court of Criminal Appeal
Date: 9 March 2001
Judge(s): Spigelman CJ, Sperling J, Carruthers AJ

Background

The respondent pleaded guilty in the Wollongong District Court to two counts of break, enter and steal (under s 112(1) of the Crimes Act 1900, which carries a maximum of 14 years) and three counts of receiving stolen property (under s 189, which carries a maximum of 3 years). The offences occurred over a short window in June 2000. The respondent had driven a co-offender to two residential properties, acting as a lookout while he entered each premises. Police later found stolen property at her home, forming the basis of the receiving counts.

The sentencing judge imposed a single global sentence of two years imprisonment by way of periodic detention, with a non-parole period of 18 months, without distinguishing between the two sets of charges. The respondent had an extensive criminal history dating back to 1982, including multiple prior convictions for break, enter and steal.

The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912, arguing both that the sentencing judge had made a legal error and that the sentence was manifestly inadequate.

  • Whether the sentencing judge erred in law by imposing a single global sentence across offences carrying significantly different maximum penalties, without separately identifying sentences for each offence
  • Whether the sentencing judge erred in treating the offending during a parole period as an aggravating feature across all five counts
  • Whether the sentence of periodic detention was manifestly inadequate given the respondent's offending history and the objective seriousness of the offences

Decision

The Court of Criminal Appeal identified a clear legal error on the face of the sentencing judge's remarks. Relying on the High Court's decision in Pearce v The Queen (1998) 194 CLR 610, the Court held that where an offender is sentenced for multiple offences carrying different maximum penalties, separate sentences must be imposed for each offence. Imposing a single global sentence, with no differentiation between break, enter and steal charges and receiving charges, was an error on its face.

The Court also identified a related error in the aggravation analysis. The sentencing judge had treated offending during a parole period as aggravating across all five counts. The Court found this was only supportable for one of the receiving counts. The break, enter and steal offences were committed after the respondent's parole had expired, and the parole aggravation could not properly attach to those charges.

On manifest inadequacy, the Court held that periodic detention was not appropriate given the objective seriousness of the offences and the respondent's sustained history of property crime. The Court acknowledged her guilty plea at the earliest opportunity and its utilitarian value, and also found special circumstances warranting a longer supervisory period. However, nothing in the subjective circumstances justified avoiding full-time custody.

Spigelman CJ reduced the head sentence from four years (the starting point before any guilty plea discount) to three years, in recognition of the early plea. The Court also noted that the co-offender, who was regarded as somewhat more culpable, had received three years and nine months with a non-parole period of two years and nine months.

Orders Made

  • Appeal allowed
  • Sentence imposed by Moore DCJ on 20 October 2000 quashed
  • For each offence under s 112(1) of the Crimes Act 1900: imprisonment for 3 years commencing 20 October 2000, with a non-parole period of 18 months commencing 20 October 2000
  • For the three offences under s 189 of the Crimes Act 1900: fixed term of 18 months imprisonment commencing 20 October 2000

Key Takeaways

  • Under the principle confirmed in Pearce v The Queen, a sentencing court must impose separate sentences for each offence rather than a single global sentence, particularly where the offences carry materially different maximum penalties.
  • Imposing undifferentiated global sentences across offences with significantly different maximum terms is a legal error, not merely a matter of sentencing discretion.
  • Aggravation arising from offending during a parole period must be assessed charge by charge: it cannot be applied across all counts without establishing that each offence was actually committed while parole was still operative.
  • A guilty plea entered at the earliest possible opportunity carries significant utilitarian weight, but the Court of Criminal Appeal confirmed that where no contrition is demonstrated, the plea's mitigatory value does not extend beyond that utilitarian purpose.
  • Sustained prior offending history for similar property offences was a weighty factor against the appropriateness of a non-custodial sentence, even where there were some favourable subjective circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(1) (break, enter and steal) and 189 (receiving)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- Pearce v The Queen (1998) 194 CLR 610
- Re Attorney-General's Application [No 1]; R v Ponfield (1999) 48 NSWLR 327
- R v Henry (1999) 46 NSWLR 346
- R v Cacciola (1998) 104 A Crim R 178
- R v Galway (1998) 103 A Crim R 35
- R v Khamas (1999) 108 A Crim R 499
- R v Lilley (2000) 111 A Crim R 468
- R v Mastronardi (2000) 111 A Crim R 306
- R v Osenkowski (1982) 30 SASR 212
- R v King [2001] NSWCCA 18
- Various other unreported NSWCCA decisions cited in argument