R v Grube

Case [2005] NSWCCA 140

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      REGINA v. GRUBE [2005]  NSWCCA 140

FILE NUMBER(S):
2004/3277

HEARING DATE(S):               Friday 1 April 2005

JUDGMENT DATE: 14/04/2005

PARTIES:
REGINA v.
GRUBE, Shannon James

JUDGMENT OF:       Grove J Howie J Hall J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          03/11/0728;  03/11/0730;  04/11/0488

LOWER COURT JUDICIAL OFFICER:     Patten, DCJ.

COUNSEL:
Crown:  P. Barrett
App:  A. Haesler, SC

SOLICITORS:
Crown:  S. Kavanagh
App:  S.E. O'Connor

CATCHWORDS:

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

DECISION:
Application dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

2004/3277

GROVE, J.
HOWIE, J.
HALL, J.

THURSDAY 14 APRIL 2005

REGINA v. SHANNON JAMES GRUBE

Judgment

  1. GROVE, J:  I agree with Hall, J.

  2. HOWIE J:  I have the benefit of having read the judgment of Hall J in draft. I agree with his Honour’s reasons and the orders he proposes but I wish to add a brief comment.

  3. Section 33(3) of the Crimes (Sentencing Procedure) Act provides:-

    If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.

  4. It seems to me that, if the argument mounted by Mr Haesler SC as to the effect to be given to the judgment of the Chief Justice in Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 146 were accepted, the word “maximum” in s 33(3) would be otiose. If the court sentencing for the principal offence was restricted to a penalty that was within the range of sentences that could have been imposed had the further offence not been taken into account, the sentence for that offence could never exceed the relevant maximum penalty, because it would only be if the principal offence itself warranted the maximum penalty that such a penalty could be imposed.

  5. The reference to the maximum penalty appears in s 33(3) because the legislature understood that the sentence to be imposed for the principal offence, taking into account the further offences, could exceed the sentence that would have otherwise been appropriate for the principal offence by a very considerable margin. But it recognised that there should be some limit imposed upon the effect to be given to the further offences and that was to be the maximum penalty that could have been imposed upon the principal offence standing alone. The terms of s 33(3) are in my view clearly inconsistent with the argument advanced on the part of the applicant and this is a reason further to those given in Hall J’s judgment for its rejection.

  6. HALL, J: In this application for leave to appeal against the severity of sentences imposed upon the applicant by Patten, DCJ. on 4 June 2004, a question has arisen as to the application of the provisions of Division 3 Part 3 of the Crimes (Sentencing Procedure) Act 1999.

  7. It…

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AGLC
R v Grube [2005] NSWCCA 140
Case
[2005] NSWCCA 140
Decision Date

CaseChat Overview and Summary

The case of R v Grube involves an appeal against the sentence imposed on the applicant, who has a history of property offences. The applicant was sentenced for multiple offences, including break and enter a dwelling house and commit serious indictable offence (stealing) and attempt to take a conveyance whilst owner present in vehicle. The Crown argued that the applicant's multiple offences constituted a crime spree rather than a continuous episode of criminality. The applicant argued that the sentences imposed were excessive and failed to account for the principle of relativity between the principal offence and the Form 1 offences.

The legal issues before the court involved the interpretation of the Crimes (Sentencing Procedure) Act 1999 and the Crimes Act 1900, specifically the principles for sentencing under Division 3 of Part 3 of the Act. The court had to determine whether the sentencing judge erred in setting a too high a starting point for the sentence, and whether the overall sentence was excessive. The applicant argued that the sentencing judge failed to properly apply the principle of relativity when considering the Form 1 offences.

The court rejected the applicant's argument, finding that there was no error in the sentencing judge's approach. The court found that the sentencing judge correctly identified the principal offence and applied the appropriate principles when considering the Form 1 offences. The court found that the sentences imposed were proportionate to the seriousness of the offences and that the sentencing judge had properly considered the aggravating factors, such as the commission of multiple offences while on bail.

The court found that the applicant's submission misapplied the principles enunciated by Spigelman, CJ. in the guideline judgment. The court found that the sentencing judge had appropriately focused on the principal offence and had not imposed punishment for the Form 1 offences. The court found that the sentences imposed were proportionate and that there was no error in the sentencing process.

The court dismissed the appeal and upheld the sentences imposed by the sentencing judge.

Orders

Orders of the court

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Background

Background to the litigation

Before coming to that question, however, it is necessary to state the facts concerning the sentences and in particular concerning the principal offence in the indictment with respect to count 3 and certain matters relevant to the Form 1 offences. Before doing so, however, I should refer to some background matters.Background matters The applicant was born on 21 February 1975 and has a long history of property offences and in respect of some, several stays in custody have been imposed. The sentencing exercise that was required to be undertaken by Patten, DCJ. involved a considerable number of offences and it was conceded by senior counsel on behalf of the applicant that they justified a substantial sentence. However, it was contended that, viewed in context, the sentences related to one period of continuous criminality and that a range of sentencing factors applied to the determination of each sentence. The offences took place between 12 July 2002 and 2 April 2003, a period of nine months. The Crown took issue with the submission referred to in paragraph 6 above contending that rather than there being a continuous episode of criminality the offences represented “a crime spree over a long period” (Crown submissions, paragraph 17). The Crown submitted that this point accordingly should not, in the circumstances of the matter, be regarded as a mitigating factor. Rather, the Crown submitted the commission of multiple offences while at conditional liberty (on bail) was an aggravating factor of importance.The sentences The applicant was sentenced as follows:-Counts 1 and 2 - two offences of attempt to take a conveyance whilst owner present in vehicle (Crimes Act, s.344A, maximum penalty 10 years). On each offence, imprisonment for four years with a non-parole period of two years concurrent.Counts 4 to 25 – 25 offences of break and enter a dwelling house and commit serious indictable offence (stealing) (Crimes Act, s.112(1), maximum penalty 14 years). On each offence, imprisonment for six years with a non-parole period of four years concurrent with each other and cumulative on counts 1 and 2, above.Count 3 – break and enter a dwelling house and commit serious indictable offence (stealing) (Crimes Act, s.112(1), maximum penalty 14 years). Together with 42 offences (35 x break, enter and steal) taken into account on Form 1. Seven years imprisonment with a non-parole period of three years, partially concurrent for one year with sentences for counts 4 to 25 and cumulative as to the balance of the sentence upon those other sentences. The Crown correctly observed that the effect of the sentences was a total sentence of 12 years with a non-parole period of eight years. In his Remarks on Sentence, Patten, DCJ. observed that the multiple break, enter and steal offences committed by the applicant involved residential premises each forcibly entered through a door or window and a large quantity of valuable property of various kinds being stolen. All in all, the sentencing judge observed, the stolen property had a value in excess of $500,000, little of which had been recovered. That figure included matters on the Form 1. Motor vehicles having a value of approximately $1.5 million were also taken. The crimes were committed at many suburbs in the Sydney metropolitan area and in surrounding towns.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The conclusion to be drawn, so the argument ran, was that the learned sentencing judge either erred in taking too high a starting point before making allowances for the guilty pleas and the subjective factors, or in the process of accumulation, arrived at an overall sentence that was simply excessive (written submissions, paragraph 29).Application of s.33 and the (Division 3 of Part 4) Guideline Judgment to the Form 1 offences Senior counsel for the applicant sought to support his submissions by reference to the Div 3 of Part 3 guideline judgment of Spigelman, CJ. in Attorney-General’s application under s.37 of the Crimes (Sentencing Procedure) Act 1999 (supra). In doing so, particular attention was drawn to a number of propositions to be found in the judgment of Spigelman, CJ. including the following:-•The sentencing court is sentencing only for the ‘principal offence’ [39];•The important point is that the focus throughout must be on sentencing for the primary offence [43];•A sentencing judge is not imposing punishment for Form 1 offences [29].•The process under the statutory scheme in Division 3 Part 3 of the Act involves a process under which a longer sentence may be imposed than if the primary offence had stood alone [18];• Sometimes the additional penalty will be substantial [18]. Central to the applicant’s argument then was the notion that there is a concept of relativity or proportionality between the principal offence and the sentence that could be imposed when account is taken of the Form 1 offences and that such proportionality is one “which would reflect the objective seriousness of that offence” (applicant’s written submissions, paragraph 27). Thus in relation to count 3, the particular offence involving the premises at Morrison Avenue, Wombarra and the seriousness of that offence had to be given appropriate recognition and weight in preserving what was suggested as the necessary relativity or proportionality. Mr. Haesler, SC. sought to maintain this submission by reference to the hypothetical example put to him by Howie, J. during the course of oral submissions. The example involved a hypothetical case where the appropriate range for the principal offence (apart from Form 1 offences) was between 3 and 5 years. Senior counsel sought to contend that his submission meant that the inflation or increase in the sentence to be imposed for the principal or primary offence by reason of the Form 1 offences being taken into account would not exceed the upper end of the range of 3 to 5 years range. This result, it was contended, was supported by the principles stated by Spigelman, CJ. in the guideline judgment to which reference has already been made, in particular, that part of it which states that “the focus” must be on the “principal offence” alone (see paragraph 29 in the judgment of Spigelman, CJ. and also paragraph 43). I am unable to accept this submission. It involves, in my respectful opinion, a misapplication of the principles enunciated by Spigelman, CJ. in the judgment as to the correct approach to be taken when a court is required to take into account matters on a Form 1.

Ratio Decidendi

Legal Principle Established

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