R v Griggs

[1999] NSWCCA 381

Reported Decision: 109 A Crim R 484

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Griggs [1999] NSWCCA 381
FILE NUMBER(S):	CCA 60387/99
HEARING DATE(S):	23 November 1999
JUDGMENT DATE:	23 November 1999
PARTIES :	Regina v Scott Anthony Griggs
JUDGMENT OF:	Sperling J at 1; Sully J at 19; Hulme J at 20

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/31/0472
LOWER COURT JUDICIAL OFFICER:	McGuire DCJ

COUNSEL:	(Applicant): In Person (Crown): T L Buddin SC
SOLICITORS:	(Crown): S E O'Connor
CATCHWORDS:	CRIMINAL LAW - sentencing - relevance of lesser maximum penalty under alternative summary proceedings - when and how to be taken into account - whether sufficient allowance made for this consideration.
ACTS CITED:	Criminal Procedure Act 1986
CASES CITED:	Crombie [1999] NSWCCA 297 Dalton-Morgan (NSW CCA, 14 December 1989, unreported) Jason Clyde Smith (NSW CCA, 11 September 1991, unreported) Shepherd [1999] NSW CCA 162
DECISION:	See Paragraph 18 (1), (2), (3), (4), (5) & (6).

IN THE COURT OF
CRIMINAL APPEAL

60387/99

SULLY J
HULME J
SPERLING J

TUESDAY 23 NOVEMBER 1999

REGINA v SCOTT ANTHONY GRIGGS

JUDGMENT

1    SPERLING J: The applicant stood trial before a judge and jury in the District Court on two charges, one of break, enter and steal and the other of receiving. On 9 February 1999 the trial judge directed the jury to acquit on the first charge. The jury convicted the applicant on the second charge.

2    On the same date, a sentencing hearing was held. The applicant was sentenced to two years penal servitude, consisting of a minimum term of 12 months commencing 9 February 1999 and an additional term of 12 months.

3    In July 1999, the applicant lodged an appeal against conviction and sentence with an application for extension of time.

4    The reasons given for the application for extension of time are that previous appeal applications were lost or not lodged and that there was a delay in obtaining materials from the Local Court.

5    The applicant has since filed a notice abandoning the appeal against conviction but wishes to proceed with an appeal against sentence.

6    The charge of receiving related to a gold bracelet. The charge of break, enter and steal, on which the applicant was acquitted by direction, related to a larger quantity of jewellery including the bracelet.

7    The applicant's grounds of appeal were written by himself personally and he appeared at this hearing without legal representation.

8    The grounds of appeal are as follows:

"In relation to my notice of appeal, I do wish to proceed on the severity of my sentence on the grounds that my case should of been held in a Local Court rather than District, as at the time of my trial I was charged with break, enter and steal along with receiving stolen goods and the reason I believe it was moved up to District was because the goods from the break, enter and steal amounted to $40,000. Being over $15,000 means a District Court hearing, but because there was no evidence to convict me on break, enter and steal the charge was dropped in court, leaving the charge of receiving outstanding. But the only goods I received were one gold bracelet and one gold necklace amounting to no more than $3,000 meaning that they were under $15,000. So the case should have been referred back to Local Court unless I'm wrong. In any case this is my first custodial sentence and my last, and I believe for a charge of receiving I was dealt with quite harshly and I hope for a reduced sentence as an outcome of this appeal."

9    It is necessary to consider only one aspect of the present proceedings. In that regard I quote from the written submissions of the Crown Advocate.

"The real complaint of the applicant, although not articulated in these terms, appears to be that the learned sentencing judge did not take into account when sentencing him the maximum penalty which would have been available had the matter nevertheless proceeded in the Local Court. Given that the applicant is unrepresented it seems appropriate that the merits of his claim should be examined.
Pursuant to s33K(2)(c) of the Criminal Procedure Act , the maximum penalty which would be applicable had this offence been heard in the Local Court is 12 months' imprisonment or a fine of 50 penalty units or both. It is clear that the learned sentencing judge was not referred to, and did not consider, this particular submission. The only reference to the matter was the learned sentencing judge's indication that the maximum penalty available for the offence was one of 10 years' imprisonment.
In R v Crombie [1999] NSWCCA 297 this Court said:

'...the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, remains a relevant consideration in the exercise of the discretion reserved to the sentencing judge, see Dalton-Morgan , Court of Criminal Appeal, 14 December 1989, Jason Clyde Smith , Court of Criminal Appeal, 11 September 1991, and Shepherd (1991) New South Wales Court of Criminal Appeal 162.
None of those decisions go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account. Depending upon the objective and subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. Moreover, where it appears that in the circumstance (this factor) has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal.' [At paras 15-16] (Words added) .
The Court then concluded:

'The appeal comes down to a single point, in my view, as to whether sufficient allowance was made for the circumstance identified, namely that the case could properly have been prosecuted in the Local Court, and also, the circumstance that the Crown Prosecutor conceded that to be so, but in the exercise of his discretion had decided to proceed with a lesser charge of supply in the District Court. If that circumstance is properly to be given weight in this case, particularly against the circumstance that the applicant, who had reached the age of thirty-nine, and was making some attempt to rehabilitate himself, was facing a first term of imprisonment, then it appears to me that the sentence has been shown to be manifestly excessive.' [At para 22].

There appears to be no reason why the principle enunciated in Crombie should not apply here even though in the present case there was no scope for the prosecuting authority to make an election because the value of the goods in respect of the break, enter and steal offence exceeded $15,000. It is not clear what attitude would have been taken by the prosecuting authority had the receiving matter stood alone and it had been able to make an election. It must be conceded however that in all the circumstances it was well open to either the police or the Director of Public Prosecutions to decide that the matter should proceed summarily.
Given that the learned sentencing judge did not take into account the fact that had the matter proceeded in the Local Court then the maximum penalty available would have been one tenth of that available in the District Court and in view of the fact that he imposed a sentence which was twice that which would have been available if it had been disposed of in the Local Court, then it is acknowledged, notwithstanding the matters raised in paragraph 3 of these submissions that the Court would be entitled to take the view that a different (and lesser) sentence was 'warranted in law'. It is of course recognised that it is a matter entirely for the Court to determine whether or not it ultimately comes to that view."

10    It would be unfair to be critical of the trial judge, the point was not brought to his attention either by the crown prosecutor or counsel for the accused. Without such points being brought to attention, they are easily overlooked, as occurred in this case.

11    Justice requires that this Court should now intervene.

12    I take the view that a different sentence is warranted in law, having regard to the foregoing considerations and the obligation which now arises for this Court to consider afresh the sentence that should be imposed. Accordingly, the application for extension of time and for leave to appeal against sentence should be granted. The sentence should be set aside and the applicant should be resentenced by this Court.

13    The trial judge, in his remarks on sentence, reviewed the objective circumstances of the offence and subjective considerations bearing on penalty. I consider that his Honour's observation in those respects were comprehensive and correct with the sole exception that his Honour did not take into account the consideration which vitiates the result. With that exception, I adopt his Honour's remarks on sentence as my own. In addition, this Court has the applicant's statement in his submissions today concerning efforts which he has made while in prison to rehabilitate himself and to change his attitude in respect of his past course of criminal behaviour.

14    Having regard to these matters and the additional consideration to which I have referred, namely, the point which vitiates the result, I would sentence the applicant to penal servitude for a total period of one year and six months, consisting of a minimum term of ten months and an additional term of eight months.

15    I mention at this point that on 24 March 1999, at Hornsby Local Court, the applicant was sentenced for breach of a recognisance which was current at the time of committing the offence with which we are now concerned. The penalty imposed for that breach of recognisance was a fixed term of twelve months commencing from 9 February 1999, that being the date of commencement of the minimum term fixed by his Honour, the District Court judge. It is reasonable to assume that the learned magistrate before whom the matter came on 24 March 1999 would have been influenced by the circumstance that, as things stood at that time, the applicant would be in prison for a twelve months minimum term commencing 9 February 1999 and, accordingly, that no finer attention was given to the duration of the term fixed for breach of recognisance. Had the District Court sentence been for a lesser minimum term I do not doubt that the penalty for breach of recognisance would likewise have been for the lesser term. But for this complication the applicant would be entitled to be released from custody on 8 December 1999 pursuant to the orders which I propose for adoption by this Court.

16    It follows that, if the orders which I propose are adopted, there is special need for urgent action to be taken in relation to the sentence for breach of recognisance. I note that the Crown has taken an initiative which hopefully would lead to that result in the event that what I propose is what occurs.

17    I mention that, in proposing the division I do of the total term into a minimum and an additional term, I, like the trial judge, find special circumstances, having regard in particular to a continuing need for supervision and expertise in the rehabilitation of the appellant.

18    The orders that I propose are as follows:

1. Grant application for extension of time for leave to appeal against sentence.
2. Grant leave to appeal against sentence.
3. Appeal against sentence allowed and sentence set aside.
4. The applicant resentenced to a term of penal servitude of one year and six months consisting of a minimum term of ten months commencing on 9 February 1999 and expiring on 8 December 1999 and an additional term commencing on 9 December 1999 of 8 months, 8 December 1999 being the date on which the applicant is entitled to be released on parole in relation to that sentence.
5. The applicant is to subject himself to all directions that may be given by officers of the Probation and Parole Service, in particular with regard to any course of drug rehabilitation, including attendance at a residential rehabilitation course, and he is to subject himself to urinalysis.
6. The applicant is to pay compensation to Charles Doherty in the sum of $300.

19    SULLY J: I agree with the orders proposed.

20    HULME J: Subject to three matters I agree with the orders proposed and with his Honour's reasons.

21    The three matters are these; I would myself have left the minimum term at twelve months but in view of the opinion of my brothers I am content to agree with the ten months suggested.

22    Secondly, the applicant suggested that the penalty imposed on him was severe given that his offence was only possession of a bracelet known to have been stolen.

23    Prior to his conviction for the current offence he had been convicted of four previous offences of dishonesty and was on a recognisance at the time of commission of the subject offence. He was not to be again punished for his earlier offence but he should realise that persistence in actions of dishonesty is an approach which the courts will not entertain. I by no means regard the sentence which was imposed upon him, given the chances he had and ignored, as severe.

24    The third matter to which I would mention is this, the applicant also in his submissions suggested that there would be no need for him, given a degree of rehabilitation which he has embarked upon in gaol, to be subjected to further supervision on his release.

25    If that is so his is an unusual case because my experience of many other offenders is that they need far more assistance than the applicant can have had in the period which he has so far had in gaol. The terms which have been imposed concerning his parole are there for his benefit. He would be well advised to ensure he complies with them.

26    SULLY J: The orders of the Court will be therefore the orders proposed by Sperling J.

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