Citation: Regina v John Dechellis [2002] NSWCCA 88
Court: NSW Court of Criminal Appeal
Date: 19 March 2002
Judge(s): Greg James J, Buddin J
Background
The applicant pleaded guilty in the Local Court to a charge under s 112(2) of the Crimes Act: break and enter a dwelling and commit a serious indictable offence (malicious damage) in circumstances of aggravation, namely that people were known to be present inside. The offence involved a late-night home invasion in a regional NSW town, during which the applicant and a co-offender smashed windows, entered the house brandishing a baseball bat and a butcher's steel, and caused significant terror to a family including two toddlers. The incident extended to a neighbouring property, where further threats and violence occurred.
In the District Court, Judge Williams sentenced the applicant to three years' imprisonment with a non-parole period of two years, backdated to 4 February 2001. The same sentence was imposed on the co-offender. The applicant, appearing in person before the Court of Criminal Appeal, sought an extension of time to apply for leave to appeal, contending the sentence was manifestly excessive.
At the time of sentencing, the applicant was 20 years old, had an extensive prior record, and was already serving sentences for separate offences including common assault, assault occasioning actual bodily harm, and escaping lawful custody.
Legal Issues
- Whether an extension of time to seek leave to appeal against sentence should be granted
- Whether the sentencing judge correctly applied a discount for the applicant's early guilty plea
- Whether "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 were properly identified to justify a longer parole period relative to the non-parole period
- Whether the sentence of three years with a two-year non-parole period was manifestly excessive for an offence carrying a maximum penalty of 20 years' imprisonment
Decision
Buddin J, with Greg James J agreeing, found that the sentence was within the applicable range for an offence of this kind. The sentencing judge had applied a discount for the guilty plea and had identified special circumstances warranting a departure from the default ratio between the non-parole and parole periods, citing the applicant's need for supervision and access to drug and alcohol counselling upon release.
The Court noted that the applicant's lengthy criminal history, including prior control orders and multiple sentences imposed shortly after the present offence, made the backdating of the sentence to 4 February 2001 a significant act of leniency in itself. This factor further undermined any suggestion that the sentence was excessive.
No error in the sentencing exercise was established. The extension of time and leave to appeal were granted, but the appeal was dismissed.
Greg James J added brief remarks acknowledging that the applicant had expressed a desire to enter a structured rehabilitation programme, either in custody or on parole. His Honour noted this willingness was commendable and confirmed that nothing in the Court's decision should stand in the way of authorities permitting the applicant to participate in such a programme.
Orders Made
- Application for extension of time: granted
- Leave to appeal: granted
- Appeal: dismissed
Key Takeaways
- A sentence of three years with a two-year non-parole period for aggravated break and enter under s 112(2) of the Crimes Act was held to fall within the appropriate sentencing range, even after accounting for a guilty plea discount and a finding of special circumstances.
- Where a sentencing judge backdates a sentence to an earlier date, thereby providing a meaningful concession to the offender, that leniency can be a relevant factor weighing against a finding that the sentence is manifestly excessive.
- Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 were properly found where the offender had identified needs for ongoing supervision and drug and alcohol counselling, justifying a longer parole period relative to the head sentence.
- An early guilty plea entered in the Local Court and maintained in the District Court is a relevant mitigating factor, but its weight does not necessarily bring a sentence below the range appropriate for a serious home invasion involving threats to young children.
- In dismissing the appeal, the Court of Criminal Appeal did not treat the applicant's stated intention to pursue rehabilitation as irrelevant, noting it should not obstruct any future decision by authorities to allow participation in a structured programme.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 112(2) (break and enter dwelling and commit serious indictable offence in circumstances of aggravation)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (special circumstances and the non-parole period)
Cases cited: No specific cases were cited in the judgment.