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Court of Criminal Appeal 10 June 2004

R v Maher [2004] NSWCCA 177 revised - 15

[2004] NSWCCA 177

Theft & property
CRIMINAL LAW SENTENCE BREAK, ENTER AND STEAL FACTORS ENHANCING SERIOUSNESS EFFECT UPON QUANTUM REPEATED INCURSIONS

Citation: R v Maher [2004] NSWCCA 177
Court: NSW Court of Criminal Appeal
Date: 10 June 2004
Judge(s): Tobias JA; Hidden J; Kirby J

Background

The applicant pleaded guilty in the Taree District Court to four charges arising from events in early 2002: one count of break and enter with intent to steal, one count of break, enter and steal, and two counts of receiving stolen property. The most serious offence involved breaking into the home of an 82-year-old woman and stealing a floor-bolted safe containing approximately $151,000 in cash, with only around $58,615 ultimately recovered.

The offending was carefully planned and executed with two co-offenders. The group made at least one earlier incursion to assess the property, exploited their knowledge of the victim's weekly routine to select the moment of the theft, and used a sledgehammer and block splitter to remove and crack open the safe. After the theft, the applicant and his co-offenders travelled to Surfers Paradise and engaged in a significant spending spree.

At sentencing in June 2003, the District Court imposed a principal sentence of six years imprisonment on the break, enter and steal charge, with a non-parole period of four and a half years, and concurrent fixed terms of one year on the remaining counts. The applicant sought leave to appeal, contending the sentences were manifestly excessive and that the sentencing judge had erred in several respects.

  • Whether the sentencing judge erred in finding the applicant to be a principal organiser and executor of the offences, rather than a lesser participant
  • Whether the head sentence of six years, and the non-parole period of four and a half years, were manifestly excessive having regard to the objective seriousness of the offending and the applicant's personal circumstances
  • Whether the sentencing judge gave adequate weight to the applicant's disadvantaged background and other subjective factors
  • Whether the overall sentence was proportionate to those imposed on the co-offenders

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the substantive challenge to the sentence, upholding the findings of the sentencing judge on each ground.

On the question of the applicant's role, the Court accepted that the sentencing judge was entitled to find the applicant had a substantial part in organising and executing the offending. This conclusion was supported by the evidence, including the applicant's own words on the night of the attempted earlier incursion and the fact that he directed the group to leave for the property on the night of the theft.

The Court acknowledged the head sentence was on the high side but declined to find it fell outside the range open to the sentencing judge. Several aggravating features were present simultaneously: repeated incursions, professional planning, a very large sum of cash stolen, significant damage to property, the advanced age and vulnerability of the victim, and the applicant's prior criminal history as a persistent offender. These factors, taken together, placed the offending towards the high end of the middle range of seriousness, if not higher.

Hidden J added a further observation on proportionality. The sentences on the three lesser charges ran entirely concurrently with the principal sentence. His Honour noted that if the primary sentence had been lower, the sentencing judge could legitimately have accumulated some of the lesser sentences to arrive at the same aggregate, making the overall outcome no different for the applicant.

The Court also corrected a technical error in the commencement dates of the sentences, varying them so each ran from 26 May 2003 rather than 6 June 2003, to reflect the date the applicant was taken into custody.

Orders Made

  • Leave to appeal granted
  • The sentences imposed by Twigg DCJ on 5 June 2003 were varied so that each commenced on 26 May 2003 and expired on 25 May 2009
  • In respect of Count 2, the non-parole period of four years and six months was to commence on 26 May 2003 and expire on 24 November 2007
  • Otherwise, the appeal against sentence was dismissed

Key Takeaways

  • Multiple aggravating factors operating simultaneously, including professional planning, repeated incursions, a vulnerable elderly victim, substantial property loss, and a persistent prior record, can collectively justify a sentence towards the upper end of the available range for break, enter and steal.
  • A sentencing court's finding as to an offender's role, including a finding of substantial involvement in planning and execution, will be upheld on appeal where the evidence reasonably supports it, even where the offender disputes that characterisation.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a head sentence may be on the high side without being manifestly excessive, provided it does not exceed the range properly open on the facts.
  • Where all lesser sentences run wholly concurrently with the principal sentence, the overall sentencing structure may reflect aggregate criminality without constituting an error, particularly where partial accumulation could have produced the same result.
  • Proportionality between co-offenders remains a relevant consideration: the Court noted the applicant's sentence was in proportion to those received by his co-offenders, given the finding that he bore the greater share of responsibility for organising the enterprise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(1), 113(1), 189
- Justices Act 1902 (NSW), s 51A
- Criminal Procedure Act (NSW)

Cases
- Re Attorney General's Application (No 1)
- R v Ponfield & Ors (1999) 48 NSWLR 327
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- R v Rutter [2003] NSWCCA 306
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Hayes (1984) 1 NSWLR 740
- R v Powell [2000] NSWCCA 108
- Fernando (1992) 76 A Crim R 58
- Pearce v The Queen (1998) 194 CLR 610