Regina v Craig Phillip DELUCA - [2002] NSWCCA 446

CITATION: REGINA v Craig Phillip DELUCA [2002] NSWCCA 446

FILE NUMBER(S): CCA 60521/01

HEARING DATE(S): 11/11/02

JUDGMENT DATE:
11 November 2002

PARTIES :

Regina
Craig Phillip DELUCA (Applicant)

JUDGMENT OF: Wood CJ at CL at 31; Dowd J at 32; Bell J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0477

LOWER COURT JUDICIAL
OFFICER : Freeman DCJ

COUNSEL : W.G. Dawe QC (Crown)
T.S. Corish (Applicant)

SOLICITORS: SE O'Connor
DJ Humphries (Applicant)

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Summary Offences Act 1998

CASES CITED:
Cameron v The Queen [2002] HCA 6; ALJR 382
Pearce v The Queen (1998) 194 CLR 610
R v Sharma [2002] NSWCCA 142; 54 NSWLR 300
R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383

DECISION: Leave to appeal against the severity of the sentences granted; Appeal allowed in each case; Quash the sentences imposed in the District Court, and in lieu thereof the applicant sentenced in respect of Count 1 to a sentence of three years and three months imprisonment to date from 6 March 2001; Non-parole period of two years and four months to expire on 5 July 2003; In respect of Count 2 the applicant sentenced to a term of three years and nine months imprisonment to date from 6 July 2003. That sentence will expire on 5 April 2007; Non-parole period of two years and two months to date from 6 July 2003; The first date upon which the applicant will be eligible for consideration for release on parole is 5 September 2005

60521/01

WOOD CJ at CL
DOWD J
BELL J
11 November 2002

REGINA v Craig Phillip DELUCA

Judgment

1 BELL J: The applicant seeks leave to appeal against the severity of sentences imposed on him in the District Court on 3 August 2001. He entered pleas of guilty before the Local Court at Hornsby on 22 May 2001 to two charges. The first was an offence of aggravated break and enter with intent to commit an indictable offence (larceny) contrary to s 113(2) of the Crimes Act 1900 (“the Act”). The circumstance of aggravation alleged was that immediately after the breaking and entering the applicant used corporal violence upon Eric Connors. The second offence was one of robbery whilst armed with an offensive weapon contrary to s 97(1) of the Act. The offence of aggravated breaking and entering with intent carries a maximum penalty of fourteen years imprisonment. The armed robbery offence carries a maximum penalty of twenty years imprisonment.

2 It appears that there was some technical deficiency in the committal for sentence document. On 3 August 2001 the applicant was arraigned upon indictment charging him with the two offences. He entered pleas of guilty to each count. The sentencing judge approached the matter upon the basis that the applicant had in each case entered an early plea of guilty. The applicant asked the sentencing judge to take into account…

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.

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Details

Case: [2002] NSWCCA 446
Decision Date: 11 November 2002

CaseChat Overview and Summary

Craig Phillip Deluca has appealed against the severity of the sentences imposed on him by the District Court. The applicant pleaded guilty to two charges, aggravated break and enter with intent to commit larceny, and armed robbery, both of which were committed on the same day. The applicant was sentenced to a term of imprisonment of four years for the first offence and four and a half years for the second offence, to be served consecutively. The non-parole period for the combined sentence was five and a half years. The applicant's counsel identified several grounds of appeal, primarily contending that the sentencing judge erred in failing to adequately consider the applicant's early pleas of guilty and subjective circumstances. The Court found that the sentencing judge erred in not allowing an appropriate discount for the applicant's early pleas of guilty and in balancing this against the principle of totality. The Court also found that the sentences were excessive in light of the applicant's subjective circumstances. The Court allowed the appeal, quashed the original sentences, and re-sentenced the applicant to a term of three years and three months imprisonment for the first offence, and three years and nine months imprisonment for the second offence, to be served consecutively. The non-parole period was adjusted to reflect the objective seriousness of the offences and the applicant's subjective circumstances.

The Court's decision highlights the importance of appropriately considering the utilitarian value of a plea of guilty in sentencing and the need for transparency in the sentencing process. The Court also emphasises the need to consider the subjective circumstances of the offender, including their criminal history, employment record, and prospects for rehabilitation, when determining an appropriate sentence. Finally, the decision illustrates the Court's willingness to depart from the statutory proportion between the sentence and the non-parole period in appropriate circumstances.

Orders