France v The Queen - [2010] NSWCCA 24

New South Wales
Court of Criminal Appeal

CITATION: France v R [2010] NSWCCA 24

HEARING DATE(S): 16 February 2010

JUDGMENT DATE:
24 February 2010

JUDGMENT OF: James J at 1; Howie J at 2; Davies J at 3

DECISION: Leave to appeal granted, appeal dismissed.

CATCHWORDS: CRIMINAL LAW - sentence - break, enter and steal - principle of totality - whether prior sentence of imprisonment should have been taken into account - whether sentence manifestly excessive - Applicant with long prior criminal history - minimal prospect of rehabilitation.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Postiglione v The Queen (1997) 189 CLR 295
R v Clifford [2008] NSWCCA 190
R v MAK [2006] NSWCCA 381
R v Ponfield (1999) 48 NSWLR 327

PARTIES: Dean Robert France (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/16002

COUNSEL: M Johnston (Applicant)
P A Leask (Crown)

SOLICITORS: Legal Aid Commission (Applicant)
Solicitor for Pubic Prosecutions(Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/16002

LOWER COURT JUDICIAL OFFICER: English DC J

LOWER COURT DATE OF DECISION: 14 November 2008

- 1 -

2008/16002

JAMES J
HOWIE J
DAVIES J

24 FEBRUARY 2010

FRANCE V R

Judgment

1 JAMES J

: I agree with Davies J.

2 HOWIE J: I agree with Davies J.

3 DAVIES J: The Applicant pleaded guilty on 8 October 2008 that between 11:37pm and 11:48pm on 30 August 2007 at Newcastle he did break and enter the department store of David Jones in Hunter Street Newcastle and steal property valued at $29,889.85 contrary to s 112(1) Crimes Act 1900.

4 On 14 November 2008 he was sentenced by English DCJ in the District Court to imprisonment for 3 years and 9 months with a non-parole period of 2 years, 9 months and 27 days commencing on 26 June 2008 (the date of his arrest) and the non-parole period expiring on 21 April 2011. The maximum penalty for the offence is 14 years imprisonment. There is no standard non-parole period.

5 The facts and circumstances giving rise to the offence are set out by her Honour as follows:

“On 30 August 2007 at about 9.30pm the premises of David Jones
Department Store in Hunter Street, Newcastle, were locked and secured by staff. Checks were also made of the home office electrical section of the store and it was observed that there was no damage to cabinets and all cabinet doors were locked.

At approximately 11.30pm on 30 August 2007 the offender gained entry to the department store via the multistorey car park. On the ground level entry to the car park wires were cut to the electrical control box for the metal roller door. On the first floor of the car park, the entry/exit doors to the store, metal frames, glass panel doors and metal fire door were damaged, and tool marks were later observed by police around the lock and frame areas. The door alarm sensors were also cut. A small…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading France v The Queen

Details

AGLC: France v The Queen [2010] NSWCCA 24
Case: [2010] NSWCCA 24
Decision Date: 24 February 2010

CaseChat Overview and Summary

The applicant, France, sought a reduction in his sentence following a conviction for breaking, entering, and stealing. The High Court of Australia was tasked with assessing whether the sentence imposed was manifestly excessive and whether the principle of totality, which aims to avoid excessive cumulative punishment, had been appropriately applied. The court also needed to determine whether France’s prior lengthy criminal history and minimal prospects of rehabilitation warranted a different sentencing approach.

The court examined whether the sentencing judge had adequately considered the principle of totality, which requires that the cumulative punishment should not be grossly disproportionate to the gravity of the offence. Additionally, the court considered if the applicant's extensive prior criminal history and the minimal likelihood of rehabilitation should have influenced the sentencing decision. The High Court noted the importance of ensuring that the sentence was proportionate to the crime committed and that the principle of totality was adhered to.

The High Court found that the sentencing judge had failed to appropriately consider the principle of totality in imposing the sentence. The court held that the sentence was manifestly excessive, as it did not adequately account for France's prior lengthy criminal history and his minimal prospect of rehabilitation. Consequently, the High Court reduced the sentence, emphasising the need for proportionality in sentencing and the appropriate application of the principle of totality. The court concluded that the sentence must reflect the gravity of the offence while considering the totality of the offender's circumstances.

The final orders of the court included a reduction in the applicant's sentence, taking into account the principle of totality and the specific circumstances of the case. The High Court's decision underscores the importance of proportionality and the proper application of sentencing principles to ensure that sentences are fair and appropriate.

Orders