Citation: REGINA v David FIELDS [2002] NSWCCA 523 revised - 5/02/2003
Court: NSW Court of Criminal Appeal
Date: 18 December 2002
Judge(s): Mason P, James J, Dunford J
Background
The respondent was employed as a maintenance man at a distribution yard operated by Linfox Pty Limited, which managed beer distribution across metropolitan Sydney on behalf of Carlton & United Breweries. In October 1999, he stole 840 cartons of VB beer on two separate occasions by driving loaded company trucks off-site without authorisation. The total wholesale value of the stolen goods was approximately $41,076, and none of the beer was recovered.
The respondent pleaded guilty in the District Court on the day fixed for trial, after an adjournment application had been refused. He asked that the earlier theft be taken into account as a further offence under the relevant sentencing legislation. At the time of the offences, he was already serving sentences for dishonesty offences by way of home detention.
Puckeridge DCJ sentenced the respondent to 14 months imprisonment by way of periodic detention, without setting a non-parole period, and ordered restitution of $40,504 at $1,000 per month. The Crown appealed on the ground that the sentence was inadequate.
Legal Issues
- Whether the sentencing judge erred by imposing periodic detention rather than full-time custody, given the respondent's criminal history and the circumstances of the offences
- Whether the sentencing judge erred by failing to set a non-parole period under s 44 of the Crimes (Sentencing Procedure) Act 1999
- What sentence, if any, should be substituted on a Crown appeal re-sentencing exercise
Decision
The Court of Criminal Appeal allowed the Crown appeal, finding that the sentencing judge had fallen into error in multiple respects. The respondent's written submissions before the Court of Criminal Appeal conceded one error outright: the failure to set a non-parole period as required by s 44(1)(b) of the Act.
Mason P identified the more fundamental error as the decision to impose periodic detention at all. The respondent had an extensive record of dishonesty and had previously been afforded leniency by the courts, including home detention sentences that he was still serving at the time he committed the offences in question. The President described this as a situation where the "crossroads" had passed: the respondent had been given repeated opportunities to demonstrate that he could respond to non-custodial measures, and had not done so.
The late guilty plea was acknowledged as carrying utilitarian value, but the Court found it did not justify the degree of leniency that had been applied. The respondent's family circumstances, risk of losing employment, and the psychological evidence about his mental state were taken into account, but did not outweigh the need for full-time custody. A subsequent conviction was noted as reinforcing the conclusion that the original sentence was manifestly inadequate.
Applying the restraint appropriate to a Crown appeal re-sentencing, the Court adopted the original 14-month head sentence as the starting point, then reduced it to 12 months to give credit for the period of periodic detention already served. A non-parole period of 9 months was fixed, with the restitution order left in place but suspended until 2004 to allow the respondent a period to re-establish himself after release.
Orders Made
- Crown appeal allowed
- Sentence of imprisonment (periodic detention) quashed
- In lieu, the respondent sentenced to 12 months full-time imprisonment, commencing 18 December 2002 and expiring 17 December 2003
- Non-parole period of 9 months fixed, expiring 17 September 2003, with release on parole subject to standard conditions
- Restitution order confirmed, suspended until the commencement of 2004
Key Takeaways
- A respondent's history of receiving and failing to respond to judicial leniency is a significant sentencing factor; the Court of Criminal Appeal found that repeated non-custodial measures for dishonesty offences made full-time custody appropriate when further offences of the same character were committed while such sentences were still being served.
- Failure to set a non-parole period under s 44 of the Crimes (Sentencing Procedure) Act 1999, where no special circumstances are found, constitutes a sentencing error.
- On a Crown appeal involving re-sentencing, the Court applied restraint by taking the original head sentence as a starting point, rather than independently determining the appropriate term from scratch.
- A late guilty plea, entered only on the day of trial after a failed adjournment application, carries weight primarily for its utilitarian value in saving court time, rather than as strong evidence of genuine contrition.
- Restitution orders can be structured to account for periods of full-time custody, with suspension of payment obligations while an offender is incarcerated being one available mechanism.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33 (taking further offences into account), s 44 (non-parole periods and special circumstances)
Cases cited: None identified in the provided text.