In the Matter of the Attorney General's Application (No 1) Under s26 of the Criminal Appeal ACT; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435 (16 December 1999)

Last Updated: 16 December 1999

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: IN THE MATTER OF THE ATTORNEY GENERAL'S APPLICATION (NO 1) UNDER s26 OF THE CRIMINAL APPEAL ACT; R v PONFIELD; R v SCOTT; R v RYAN; R v JOHNSON [1999] NSWCCA 435

FILE NUMBER(S):

A00001/99

60326/99

60198/99

60498/98

60076/99

HEARING DATE(S): 1 October 1999

JUDGMENT DATE: 16/12/1999

PARTIES:

Attorney General

Regina

Robert George Ponfield

Phillip John Scott

Shannon Ryan

Jason Lisle Johnson

JUDGMENT OF: Spigelman CJ Grove J Sully J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):

98/41/0245; 97/31/0415; 97/31/0501; 96/31/0547; 98/21/1067; 98/21/3187; 98/21/3239

LOWER COURT JUICIAL OFFICER: J B Phelan DCJ (Attorney General & Ponfield); McGuire DCJ (Scott); Nield DCJ (Ryan); Ford DCJ (Johnson)

COUNSEL:

Appellants

T L Buddin SC / R Burgess (Attorney General)

C K Maxwell QC / M Buscombe (Ponfield)

S J Odgers (Scott)

P J D Hamill (Ryan)

P Byrne SC (Johnson)

Respondents

J C Nicholson QC (Public Defender) (Attorney General)

J S Stratton (Ponfield)

C K Maxwell QC / M Buscombe (Scott, Ryan, Johnson)

SOLICITORS:

Appellants

I V Knight (Attorney General)

S E O'Connor (Ponfield)

T A Murphy (Scott)

Heenan & Co (Ryan)

Naomi Hamilton (Johnson)

Respondents

T A Murphy (Ponfield)

S E O'Connor (Scott, Ryan, Johnson)

CATCHWORDS:

CRIMINAL LAW

PARTICULAR OFFENCES

property offences

breaking, entering and stealing, s112(1) Crimes Act 1900 (NSW)

CRIMINAL LAW

SENTENCING

sentencing guidelines

appropriateness of a guideline judgment

prevalence of the offence

impact on prison population

particular offender profiles

CRIMINAL LAW

SENTENCING

type of guideline

quantitative guidelines not appropriate

variety of circumstances in which offence committed

majority of cases heard in local court

sentencing considerations outlines

circumstances of aggravation and mitigation

ACTS CITED:

Crimes Act 1900 (NSW)

Larceny Act 1861 (Imp)

Crimes (Amendment) Act 1966 (NSW)

Criminal Procedure Act 1986 (NSW)

DECISION:

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

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SPIGELMAN CJ

GROVE J

SULLY J

Thursday 16 December 1999

IN THE MATTER OF THE ATTORNEY GENERAL'S APPLICATION (No 1) UNDER s 26 OF THE CRIMINAL PROCEDURE ACT

REGINA v ROBERT GEORGE PONFIELD

REGINA v PHILLIP JOHN SCOTT

REGINA v SHANNON RYAN

REGINA v JASON LISLE JOHNSON

Held (Per curiam):

1. Appropriateness of a guideline judgment

Recognised circumstances calling for a guideline judgment are perceptions of the prevalence of the offence, inconsistency in sentence quantification, emergent patterns of sentence which are either manifestly inadequate or excessive, and the requirements of general deterrence. R v Henry & Ors [1999] NSWCCA 111, (1999) 46 NSWLR 346, followed.

Whilst the maximum sentence for an offence is always a relevant consideration in the exercise of the sentencing discretion, a particular difficulty arises with respect to s112 (cast in terms of breaking and entering and committing a felony), which, as it applies to the full range of felonies, renders the maximum less useful as an indicator for sentencing where the felony involved in a particular case is not one of the more serious felonies.

The judgments of this Court and an analysis of the Judicial Commission's Sentencing Information System (SIS) statistics, do not demonstrate a general pattern of leniency which, viewed on its own, would attract the issuance of a guideline judgment. R v Hayes (1984) 1 NSWLR 740; R v Jones, unreported, New South Wales Court of Criminal Appeal, 30 June 1994, considered.

The material before the Court strongly suggests the prevalence of the offence, sufficient to attract consideration of a guideline judgment being given. Notwithstanding some disparity on account of the variety of circumstances possible in individual cases, the anomaly by way of the significant portion of offenders with a prior criminal record who received a sentence of four years or more, and those with no prior convictions who received a similar sentence, in particular, suggests the need for a guideline judgment.

2. Guideline Type and Content

A guideline which indicates the relevant sentencing considerations, without establishing a starting point or range, should be adopted in relation to s112(1). A guideline expressed in quantitative terms is not appropriate with respect to this offence, principally, in view of the great diversity of circumstances in which the offence is committed. It is not possible to identify a `typical' case. R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209; R v Henry & Ors [1999] NSWCCA 111, (1999) 46 NSWLR 346, distinguished. Furthermore, by choice of the Crown, the overwhelming majority of these cases are proceeded with in the Local Court where the maximum sentence is two years, well below what the Crown put forward as a possible quantitative guideline.

Remarks of Lord Bingham CJ, in relation to the comparable offence of domestic burglary, in Brewster (1998) 1 CrAppR 220 at 225, adopted. A number of guidelines in Brewster are not applicable in view of the legislative scheme under the Crimes Act, which requires that a trial judge in imposing a sentence not take into account circumstances of aggravation that would warrant a conviction for a more serious offence pursuant to subs 112(2) and subs 112(3). (See R v De Simoni [1981] HCA 31; (1980-81) 147 CLR 383).

3. Guidelines

A court should regard the seriousness of the offence as enhanced, and reflect that in the quantum of sentence if any of the following factors are present. If more than one factor is satisfied, there is an accumulative effect upon the seriousness of the offence.

(i) The offence is committed whilst the offender is at conditional liberty, on bail or parole.

(ii) The offence is the result of professional planning, organisation and execution.

(iii) The offender has a prior record particularly for like offences.

(iv) The offence is committed at premises of the elderly, the sick or disabled.

(v) The offence is accompanied by vandalism and by any other significant damage to property.

(vi) The multiplicity of offence, in which case regard must be had to the criminality involved in each offence: Pearce v The Queen [1998] HCA 57; (1998) 72 ALJR 1416.

(vii) The offence is committed in a series of repeat incursions into the same premises.

(viii) The value of the stolen property to the victim, whether that value of measured in terms of money or in terms of sentimental value.

(ix) The offence was committed at a time when, absent specific knowledge on the part of the offender, it was likely that the premises would be occupied, particularly at night.

(x) The actual trauma was suffered by the victim (other than as a result of corporeal violence, infliction of actual bodily harm, or deprivation of liberty).

(xi) That force was used or threatened (other than by means of an offensive weapon, or instrument).

Matters of mitigation include evidence of genuine regret and remorse, and any rehabilitative steps taken by the offender. Addiction to drugs and alcohol, a relevant circumstance, is not if itself a mitigating factor. R v Henry & Ors [1999] NSWCCA 111, (1999) 46 NSWLR 346, followed. The sentencing judge should consider the benefit flowing to an offender who pleads guilty, demonstrating application of the legislative intent manifest in s493 of the Crimes Act.

20

IN THE COURT OF

CRIMINAL APPEAL

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60076/99

SPIGELMAN CJ

GROVE J

SULLY J

Thursday 16 December 1999

IN THE MATTER OF THE ATTORNEY GENERAL'S APPLICATION (No 1) UNDER s 26 OF THE CRIMINAL PROCEDURE ACT

REGINA v ROBERT GEORGE PONFIELD

REGINA v PHILLIP JOHN SCOTT

REGINA v SHANNON RYAN

REGINA v JASON LISLE JOHNSON

JUDGMENT

1 SPIGELMAN CJ: I agree with Grove J.

2 GROVE J : Section 112(1) of the Crimes Act 1900 specifies:

"112.(1) Whosoever:

breaks and enters any dwelling-house, or any building within the curtilage of any dwelling-house and occupied therewith but not being part thereof, or any school-house, shop, warehouse, or counting-house, office, store, garage, pavilion, factory, or workshop, or any building belonging to His Majesty or to any Government department, or to any municipal or other public authority, and commits any felony therein, or

being in any dwelling-house, or any such building as aforesaid, or any school-house, shop, warehouse, or counting-house, office, store, garage, pavilion, factory or workshop, or any building belonging to His Majesty or to any Government department, or to any municipal or other public authority, commits any felony therein and breaks out of the same,

shall be liable to penal servitude for 14 years."

3 Sections 112(2) and 112(3) prescribe elevated maximum penalties for aggravated and specially aggravated offences. The penalty of 14 years penal servitude prescribed by s112(1) has distant origin. The Larceny Act 1861 (Imp) introduced a fourteen year maximum for breaking entering and committing a felony in substitution for earlier capital punishment available for burglary and housebreaking. In New South Wales the Criminal Law Amendment Act 1883 followed a Royal Commission under the chairmanship of Stephen CJ which inquired into and submitted proposals for revision, consolidation and amendment of statute law. The Larceny Act prescription was adopted in the 1883 Act. The Crimes Act 1900 prescribed a maximum of ten years penal servitude however the fourteen year maximum was reintroduced by the Crimes (Amendment) Act 1966.

4 The Director of Public Prosecutions (DPP) sought a guideline judgment in connection with penalties imposed for offences contrary to s112(1) and there are before the Court four cases deemed suitable vehicles for consideration of such: a Crown appeal asserting inadequacy of sentence in the matter of Ponfield and appeals against severity of sentence in matters of Scott, Ryan and Johnson. Pursuant to Pt8 of the Criminal Procedure Act 1986 (CP Act) the Attorney General has made application to the Court for a guideline judgment concerning offences under s112 of the Crimes Act where the felony committed is larceny. The Crown Advocate Mr Buddin SC who appeared with Ms Burgess for the Attorney General confined the application to s112(1) so as to conform with the application of the DPP. The applications and the appeals were heard together.

Prescribed And Jurisdictional Maximum

5 As observed, the prescription of a maximum penalty of 14 years penal servitude has some history. Having regard to the existence of subss (2) and (3) it is pertinent to bear in mind that when an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case: Ibbs v The Queen [1987] HCA 46; 1987 163 CLR 447 @ 452.

6 Of particular significance however to present consideration is the effect of provisions for disposing of offences contrary to s112(1) summarily in the Local Court. The effect of s33C of the CP Act and Table 1 par 8 to Pt9A of that statute is to bring a matter where the value of the stolen property is less than $15,000 within the jurisdiction of that Court. The power of the Local Court is limited to sentence of 2 years penal servitude or imprisonment with an extension to 3 years where cumulative sentences for multiple offences are being imposed. There is no mechanism for resolution of any dispute concerning the value of property for the purpose of assignment to jurisdiction and, in any event, either the prosecutor or the defendant may elect to have any offence charged under s112(1) tried upon indictment (CP Act s 33C(1)).

Jurisdictional Assignment In Practice

7 The amendments to the CP Act facilitating disposal of s 112(1) offences in the Local Court commenced operation in September 1995. Figures kept by the Bureau of Crime Statistics and Research and by the Judicial Commission reveal a marked trend to have the majority of matters dealt with at summary hearing. The latest full year figures (1998) concerning persons dealt with for offence against s 112(1) - where the felony was stealing and it was either the single or most serious offence - show 1,464 cases dealt with in the Local Court (88.4%) and 192 in the District Court.

8 It is self evident upon observation of these figures that the vast proportion of offences under consideration are, and every indication is that they will continue to be, dealt with in the Local Court.

Is A Guideline Judgment Appropriate?

9 The basis upon which the Court might consider issuance of a guideline judgment was elaborated by Spigelman CJ in R v Jurisic [1998] NSWSC 423; 1998 45 NSWLR 209 @ 216-222 and it need not be repeated: See also R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at 351-359; The Honourable J.J. Spigelman "Sentencing Guideline Judgments (1999) 11 Current Issues in Criminal Justice 5; (1999) 73 ALJ 876. The principles are not affected by the subsequent legislation of a procedure for formal application by the Attorney General and the Court, even if that procedure is invoked, is not obliged to issue any guideline unless it believes it appropriate to do so: CP Act s28(b).

10 Recognized circumstances calling for a guideline judgment are perceptions of the prevalence of offence, inconsistency in sentence quantification and emergent patterns of sentence which are either too harsh or too lenient and the requirements of general deterrence: R v Henry & Ors 1999 NSW CCA 111.

11 The DPP has submitted that support for the existence of the factors of prevalence, excessive leniency and inconsistency of sentence in relation to the offence of breaking entering and stealing can be demonstrated.

12 The evidence (within which I include for present purposes any relevant information resource authorized by the CP Act s29A(1)) of the prevalence of the offence in the sense of frequent occurrence is overwhelming. Bureau recorded statistics for the year ending June 1999 specify 80,621 and 46,108 breaking and entering dwellings and non dwellings respectively. Similar recording for the preceding year are 84,192 and 47,843. The fall in rate derivable from comparison of those figures (- 4.2% and - 3.6%) does not deny prevalence.

13 Pursuant to his entitlement (CP Act ss 26(6)(7) and (8)) the Senior Public Defender Mr Nicholson SC (with Mr Stratton) appeared and made submissions which I did not understand to seek to contradict the existence of prevalence of the offence but rather to caution against using it as a trigger for the issuance of a guideline judgment. On the apparent assumption that increase in sentence level would be predicated he invited the Court to refrain from enlivening public expectation that the issuing of a judgment would bring about a reduction in prevalence. To do so, it was said, would be to enter the "law and order" debate. Whilst I have understood the submission to be a reference to that term in popular usage, I comment that law and order are intrinsic objectives of the judicial arm of government.

14 In drawing attention to asserted perils Mr Nicholson referred to tying sentence to prevalence levels. I did not understand such to be sought by either the DPP or the Attorney General and for my part I would not contemplate that there should be any ratio between them, fixed or otherwise. The issue is simply whether the offence is so prevalent as to attract consideration of a guideline judgment being given. The offence is in fact undoubtedly prevalent.

15 The contention by the DPP that there exists a trend towards undue leniency was based upon detection of such as articulated in two judgments of this Court and statistical analysis of some sentencing information.

16 The first case under reference was R v Hayes 1984 1 NSWLR 740 where Street CJ said, inter alia:

"There has developed a tendency to give inadequate weight to the legislative policy which fixes fourteen years as the statutory maximum for this offence. That tendency needs correction"

and

"in the present case the appellant had, in 1981, been sentenced to three years on three charges of break, enter and steal - a sentence passed under what must be regarded as the past, more lenient policy for sentencing for this offence."

17 Three observations might be made. First, the offender was being dealt with on thirty four charges (including those being taken into account on a Schedule); second, the system of remissions prior to the Sentencing Act 1989 was in operation and, third, the case antedated the judgment of the High Court and its remarks relevant to the prescription of maximum sentence in Ibbs.

18 The second case was R v Jones unreported CCA 30 June 1994. Carruthers J (with the express agreement of Badgery-Parker J) observed that in the ten years that had passed since the decision in Hayes there was a marked tendency for sentences not to reflect the concern voiced in it and he concluded:

"The time has come for a reassertion of that statement of policy by the Chief Justice. In my view, the dismissal of the appeal in this case should be looked upon as a correction of the trend which has developed since Hayes to underrate the degree of criminality involved in this offence."

19 Whilst the maximum sentence for an offence is always a relevant consideration in the exercise of the sentencing discretion a particular difficulty arises in this respect with s112. The offence is expressed in terms of breaking and entering and then committing a felony. In the normal course the relevant felony is stealing, however it need not be. There are many other felonies which, at least in theory, could be the subject of a charge under s112 and which are more serious than stealing. It would be unusual where such a felony had been committed for the Crown not to proceed with charges for that felony, which in many cases would carry a penalty greater than the fourteen years for which s112 provides. Nevertheless, the fact that s112 does, in terms, apply to the full range of felonies renders the maximum less than usually useful as an indicator for sentencing where the felony involved in a particular case is not one of the more serious felonies.

20 The argument was developed by reference to a series of graph analyses of sentencing statistics collated by the Judicial Commission. Those particular statistics referred to "higher courts" that is to say the District Court, the Supreme Court and this Court. It is unlikely that the Supreme Court would pass sentence for an offence of breaking entering and stealing unless it was one of multiple counts on an indictment containing at least one considerably more serious charge. Reliance on those particular statistics therefore needs qualification in their omission of reference to the Local Court jurisdiction in which the vast majority of relevant charges are heard and dealt with.

21 I am conscious that the DPP has put:

"In view of the significantly reduced maximum sentence that may be imposed by Magistrates, and the fact that appeals from sentences imposed by Magistrates in relation to this offence would not come before this Court, the submissions concerning the need for a guideline judgment do not review the available evidence concerning sentencing trends in proceedings determined in Local Courts. The objective circumstances of the offences and the subjective features of offenders who are dealt with by Magistrates for this offence are likely to differ significantly to those offenders sentenced in the higher courts."

and that Mr Maxwell QC (who appeared with Mr Buscombe for the DPP) has contended for a guideline range pertinent to higher court jurisdiction but that is an issue for determination itself.

22 In response to the submission of the existence of undue leniency the Senior Public Defender has pointed out that since 1990 there have been only fourteen Crown appeals to this Court from the District Court touching the offence of breaking entering and stealing. Four of these were launched in 1998 and all involved the specially aggravated form of the offence: Daimantis unreported CCA18 May 1998; Robertson unreported CCA 25 March 1998; Taylor unreported CCA 27 April 1998 (breaking entering and assault rather than stealing) and Untan unreported CCA 13 May 1998.

23 There were no relevant Crown appeals during 1997. In 1996 there were four. Walters unreported CCA 18 December 1996 had other charges including supplying prohibited drugs together with fifty seven matters on a schedule. Radburn unreported CCA 23 February 1996 was focussed upon the failure of the offender to honour an undertaking to give evidence in other proceedings on behalf of the Crown. Anderson unreported 25 June 1996 challenged a "Griffiths" remand ordered in respect of three charges of breaking entering and stealing. The appeal was dismissed. Lansdell unreported 3 May 1996 asserted the inadequacy of a two year effective sentence divided into minimum and additional term components of six months and eighteen months for two offences of breaking entering and stealing. The Crown appeal was dismissed.

24 Vincent unreported CCA 27 July 1995 was the only Crown appeal during that year. Again it was focussed upon the complaint that the respondent had reneged upon an agreement to give evidence against others following his own sentence.

25 There were no Crown appeals during 1994. Daley unreported CCA 25 November 1993 involved two counts of breaking entering and stealing and also a count of taking a conveyance without consent and two matters taken into account of malicious damage and a mid range driving with the prescribed concentration of alcohol. The appeal was allowed to the extent that the respondent was placed upon a recognizance to be of good behaviour for three years in addition to three hundred hours of community service already performed.

26 Turner unreported CCA 11 May 1992 was the only Crown appeal that year. An effective sentence of four years comprising minimum and additional terms of two years was increased to five years divided into minimum term of three years with additional term of two years in respect of five counts of breaking entering and stealing together with four counts of receiving and one count of possessing house breaking implements.

27 There were no Crown appeals in 1991. There were three Crown appeals in 1990. Hatton unreported CCA 13 December 1990 had broken into the drug squad office of the Wollongong Police Station. Harris unreported CCA 14 August 1990 received a four year sentence divided into minimum and additional terms of three years and one year in substitution for a twelve month fixed term for multiple charges including four counts of breaking and entering with intent, possessing house breaking implements and larceny of a motor vehicle as well as a count of breaking entering and stealing. Groombridge unreported CCA 20 September 1990 had a fixed term of nine months increased to twenty one months for a cocktail of offences including four counts of breaking entering and stealing, possessing vehicle and house breaking implements and escaping from lawful custody.

28 I am unpersuaded that the material to which the Court has been referred leads to a conclusion that there has been shown to be a general pattern of leniency which, viewed on its own, would attract the issuance of a specific guideline judgment.

29 The third contention of the DPP asserted perceptible inconsistency in sentencing. Again there is reference to sentencing statistics derived from Judicial Commission records and as well there has been filed a schedule of relevant appeals to this Court for the period between 1990 and 1999. The schedule refers to 187 cases, twelve of which were the Crown appeals mentioned above.

30 For present purposes it suffices to contrast two particular analyses. Twenty two offenders of a total of sixty (36%) who, when sentenced, had no prior criminal record for any offence received a full term of four years or more. Twenty offenders of a total of ninety three (21%) who did have prior convictions for the same type of offence, received full term of four years or more.

31 While some disparity can be expected having regard to the variety of circumstances possible in individual cases, the quantity of the samples and the apparent oddity resulting from the contrast abovementioned are in my view indicators that a guideline judgment may be appropriate.

32 Prevalence and inconsistency having been demonstrated I conclude that a guideline judgment should be given. Before turning to the content of such a judgment, some aspects touching upon the particular offence and some features common to many offenders and often pertinent to many offenders might be discussed.

Prison Population

33 The Department of Corrective Services has advised that (as at 12 September 1999) 522 prisoners under sentence were counted whose most serious offence was breaking entering and stealing. This figure represents 9% of 5,995 sentenced inmates in full time custody on that day.

34 The Director of the Research and Statistics Unit of the Department was asked different questions on behalf of the Attorney General and the Senior Public Defender. For the purpose of overview I extract the following projections from his reply to the former:

"4. The average minimum time to serve (time before end of fixed or minimum term) for 781 inmates received in 1998/99 with a most serious offence of break, enter and steal was 7.8 months.

Based on these figures:

Increasing the average minimum term by 6 mth would eventually increase the inmate population by 390 inmates. This increase is approximately 7% of the current number of sentenced inmates.

Increasing the average minimum term by 12 mth would eventually increase the inmate population by 781 inmates (13% increase).

Increasing the average minimum term by 18 mth would eventually increase the inmate population by 1171 inmates (20% increase).

Increasing the average minimum term by 24 mth would eventually increase the inmate population by 1562 inmates (26% increase). "

35 It is clear that a guideline which is to the effect of increase in general level of sentencing would impact significantly upon gaol population. In Bibi 1980 71 Cr App R 360 the Lord Chief Justice speaking for the Court of Appeal referred to overcrowding of prisons in England and observed that sentencing courts, in assessing length of custody, had a duty to protect the interests of the public (from whose purse the establishment and maintenance of prisons is paid for) as well as punishing and deterring criminals.

36 That identified public interest is also a factor to be taken into account in respect of the present applications.

Particular Offender Profiles

37 Every offender is different and criminal justice is necessarily individual. So to say is not to deny that inconsistency in sentence is a badge of injustice nor to deny that the issue of and the adherence to guidelines are compatible with striving towards ideals. As the Lord Chief Justice remarked in Bibi "we are not aiming at uniformity of sentence; that would be impossible. We are aiming at uniformity of approach."

38 There are however identifiable groups with common circumstances. The most obvious groups consists of juveniles and young persons. The prominence to be given to rehabilitation of the young in determining sentence is recognized to the point of being almost axiomatic. The Senior Public Defender noted that it does not appear that the DPP seeks a guideline which impacts upon sentencing in the Children's Court although it was submitted by the DPP that the conduct of youthful offenders in committing crime of considerable gravity in an adult fashion would provoke minimal mitigation on account of youth for those offenders: R v Pham 1991 55 A Crim R 123; R v Hawkins 1993 67 A Crim R 64.

39 Some figures were made available. In 1997-1998 1,727 juvenile males had appearances on breaking entering and stealing charges finalized in the Children's Court. Of 4,250 dealt with by the Local Court between December 1994 and December 1998, 1,407 concerned offenders aged between eighteen and twenty one, as were 137 out 655 offenders dealt with in the District Court.

40 A study (ANZ Journal of Criminology Vol 32 Pt 2) has concluded that aboriginal males are "over represented" among those convicted of breaking entering and stealing. It would have to be recognized that many such offenders would merit particular consideration for the reasons elaborated in R v Fernando 1992 76 A Crim R 58.

41 In my view the existence of such significantly large groups touches upon the content of guideline rather than upon whether the Court should refrain from issuance.

Guideline Type And Content

42 A guideline judgment may, given the stated circumstances for a class of case, indicate a starting point for sentences; alternatively or in addition, it may specify an appropriate range of sentence or, third it may indicate relevant sentencing considerations without establishing a starting point or developing a range.

43 My conclusion is that in relation to s112(1) the third course should be adopted. That conclusion involves rejection of the submission by the DPP that a specific range should be prescribed and a rejection of the submission by the Senior Public Defender that it is not demonstrated that a guideline should be issued in the terms sought either by the DPP or the Attorney General. My conclusion is in accord with the stance adopted by the Crown Advocate particularly in oral submission although it should be noted that his written submission that a judgment should seek to enter upon the issue of discretion of assignment to jurisdiction was not pressed. The principal reason why a guideline expressed in quantitative terms is not appropriate with respect to this offence is the great diversity of circumstances in which the offence is committed. I have not found it possible to identify a useful typical case of the character which the Court did identify in Henry supra par (162). Nor could I identify a particular standard of general application, such as the abandonment of responsibility for an offender's conduct identified in Jurisic supra at 231.

44 Of further significance in the present case is the circumstance that, by choice of the Crown, the overwhelming majority of these cases are proceeded with in the local court where the maximum sentence is well below what the Crown put forward as a possible guideline in the present proceedings.

45 The Court of Appeal in England has recently given attention to the comparable offence of domestic burglary (formerly breaking and entering a dwelling house by night with intent to commit felony): Brewster 1998 1 Crim App R 220. Some general observations by Lord Bingham CJ are entirely pertinent to offences contrary to s112 of the Crimes Act and I would respectfully adopt and endorse his remarks:

"Domestic burglary is, and always has been, regarded as a very serious offence. It may involve considerable loss to the victim. Even when it does not, the victim may lose possessions of particular value to him or her. To those who are insured, the receipt of financial compensation does not replace what is lost. But many victims are uninsured; because they may have fewer possessions, they are the more seriously injured by the loss of those they do have.

The loss of material possessions is, however, only part (and often a minor part) of the reason why domestic burglary is a serious offence. Most people, perfectly legitimately, attach importance to the privacy and security of their own homes. That an intruder should break in or enter, for his own dishonest purposes, leaves the victim with a sense of violation and insecurity. Even where the victim is unaware, at the time, that the burglar is in the house, it can be a frightening experience to learn that a burglary has taken place; and it is all the more frightening if the victim confronts or hears the burglar. Generally speaking, it is more frightening if the victim is in the house when the burglary takes place, and if the intrusion takes place at night; but that does not mean that the offence is not serious if the victim returns to an empty house during the daytime to find that it has been burgled.

The seriousness of the offence can vary almost infinitely from case to case. It may involve an impulsive act involving an object of little value (reaching through a window to take a bottle of milk, or stealing a can of petrol from an outhouse). At the other end of the spectrum it may involve a professional, planned organisation, directed at objects of high value. Or the offence may be deliberately directed at the elderly, the disabled or the sick; and it may involve repeated burglaries of the same premises. It may sometimes be accompanied by acts of wanton vandalism." @ p 225.

46 Not only, as his Lordship perceived, can seriousness vary almost infinitely from case to case but so can relevant circumstances to be taken into account in moulding an appropriate sentence for a particular offender. The Court of Appeal determined that the offence was such that cases did not lend themselves to the derivation of precise arithmetical tariff. Likewise I have concluded that s112(1) does not involve cases which lend themselves to specification of starting point or range.

47 A number of the guidelines articulated in Brewster are not appropriate in this State. The legislative scheme under the Crimes Act makes express provision for circumstances of aggravation and special aggravation which are punishable pursuant to subs 112(2) and subs112(3). Accordingly the statutory regime in this State makes distinctions which are not present in the English statutory regime considered in Brewster. It is well established by authority of the High Court that a trial judge imposing a sentence may not take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. (See R v De Simoni [1981] HCA 31; (1980-1981) 147 CLR 383).

Guidelines

48 A court should regard the seriousness of offence contrary to s112(1) of the Crimes Act as enhanced and reflect that enhanced seriousness in the quantum of sentence if any of the following factors are present. Necessarily, if more than one such factor is present there is accumulative effect upon seriousness and the need for appropriate reflection.

(i) The offence is committed whilst the offender is at conditional liberty on bail or on parole.

(ii) The offence is the result of professional planning, organization and execution.

(iii) The offender has a prior record particularly for like offences.

(iv) The offence is committed at premises of the elderly, the sick or the disabled.

(v) The offence is accompanied by vandalism and by any other significant damage to property.

(vi) The multiplicity of offence (reflected either in the charges or matters taken into account on a Form 1 pursuant to s21 of the CP Act). In sentencing on multiple counts regard must be had to the criminality involved in each: Pearce v The Queen [1998] HCA 57; 1998 72 ALJR 1416.

(vii) The offence is committed in a series of repeat incursions into the same premises.

(viii) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value.

(ix) The offence was committed at a time when, absent specific knowledge on the part of the offender (a defined circumstance of aggravation - Crimes Act s105A(1)(f) ), it was likely that the premises would be occupied, particularly at night.

(x) That actual trauma was suffered by the victim (other than as a result of corporal violence, infliction of actual bodily harm or deprivation of liberty - defined circumstances of aggravation: Crimes Act s105A(1)(c),(d) and (e) ).

(xi) That force was used or threatened (other than by means of an offensive weapon, or instrument - a defined circumstance of aggravation Crimes Act s105A(1)(a) ).

49 It will of course be requisite for a sentencing court to give appropriate weight to matters in mitigation as manifest in the particular case. These will include evidence of genuine regret and remorse and any rehabilitative steps taken by the offender. Whilst addiction to drugs and alcohol is a relevant circumstance for the Court to consider it is not of itself a mitigating factor. (See R v Henry supra at pars [193] - [203] and [217] to [259]).

50 Section 439 of the Crimes Act obliges this Court to take into account the fact that a person has pleaded guilty and when that plea was indicated. Specification of reasons for any decision not to reduce sentence on account of such plea is mandatory. Statistical material suggests that there is a need to direct attention to the statutory requirement which in any event substantially re-articulates what the common law requires.

51 Annual figures have been ascertained for persons sentenced in the Local and District Courts between January 1990 and December 1998. It should be noted that the vast majority of cases involve pleas of guilty. Over the whole period the mean percentages for pleas of guilty were 91.6 and 94.3 in the respective courts. Without detailing the entire table of figures it can be observed that, in various years, the median fixed/minimum and full term were higher for those who pleaded guilty than those who did not. Taken over the whole span the Local Court showed a median fixed/minimum term of six months and a full term of nine months for those who pleaded guilty contrasted with six months and seven months for those who pleaded not guilty. A similar focus upon District Court figures shows a median fixed/minimum term of eighteen months for those who pleaded guilty and a median full term of thirty one months contrasted with eighteen months and twenty four months for those who pleaded not guilty.

52 The apparent discrepancy may be capable of explanation if individual cases were examined. For example, it can be contemplated that those who plead not guilty may have had less previous adverse encounter with the criminal law than those who acknowledged their guilt. Nevertheless it is apt in the context of a guideline judgment to draw attention to the necessity for discernible reflection of the benefit flowing to an offender who does plead guilty (other than the exceptional cases where reasons for denial must be expressed) and the further necessity for demonstration that there has been application of the legislative intent manifest in s493 of the Crimes Act.

53 These general considerations applicable to dealing with offences contrary to s112(1) are not of their very nature quarantined to any particular jurisdiction.

54 SULLY J: I agree with Grove J.

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LAST UPDATED: 16/12/1999