New South Wales Court of Criminal Appeal CITATION: DODDS, Shane Barry v R [2009] NSWCCA 191 HEARING DATE(S): 16 July 2009 JUDGMENT DATE: 16 July 2009 JUDGMENT OF: Hodgson JA at 13; Howie J at 14; Fullerton J at 1 EX TEMPORE JUDGMENT DATE: 16 July 2009 DECISION: 1. Leave to appeal granted. 2. Appeal dismissed. CATCHWORDS: CRIMINAL LAW - appeal against sentence - whether sentence manifestly excessive - breaking into house and stealing - utility of JIRS statistics in assessing the appropriateness of a sentence LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment CASES CITED : R v McNaughton [2006] NSWCCA 242; 163 A Crim R 381 Robertson v R [2007] NSWCCA 270; 177 A Crim R 121 PARTIES: Shane Barry Dodds (App) The Crown (Resp) FILE NUMBER(S): CCA 2007/15329 COUNSEL: W Hunt (App) M Grogan (Resp) SOLICITORS: Legal Aid Commission of NSW (App) Director of Public Prosecutions (Resp) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/15329 LOWER COURT JUDICIAL OFFICER: Solomon DCJ LOWER COURT DATE OF DECISION: 7 December 2007 IN THE COURT OF CRIMINAL APPEAL 2007/15329 HODGSON JA HOWIE J FULLERTON J 16 JULY 2009 DODDS, Shane Barry v R Judgment 1 FULLERTON J: The applicant seeks leave to appeal against a sentence imposed in the District Court by his Honour Judge Solomon on 7 December 2007 after he entered a plea of guilty on 9 October 2007 to breaking into a private house at Middle Cove on 6 July 2006 and stealing property valued at $40,000. The charge was laid pursuant to s 112(1) of the Crimes Act 1900. It attracts a maximum penalty of 14 years. The applicant was arrested on 31 January 2007 on the basis of a match between his DNA and blood deposited at the premises. 2 His Honour imposed a sentence of imprisonment comprising a non-parole period of 2 years and 1 month dating from 7 December 2007 with a balance of term of 2 years and 2 months. 3 The challenge to the sentence is that it is manifestly excessive in light of his Honour's finding that the offence was below the mid-range of objective seriousness. Support for that submission is said to derive from the Judicial Information Research System (JIRS) statistics which reveal that in only nine per cent of sentences for offending against s 112(1) which attracted full-time custody was a non-parole period imposed greater than 2 years and 1 month and only three per cent of sentences attracted a total term of imprisonment greater than or equal to 4 years and 3 months. 4 The applicant's counsel frankly conceded that the statistics are a "blunt tool" consistent with this Court having repeatedly cautioned against the utility of referring to the JIRS statistics in assessing the appropriateness of a sentence under review. As Rothman J emphasised in Robertson v R [2007] NSWCCA 270; 177 A Crim R 121 the principal signposts for sentence are the maximum sentence provided for by the Parliament and the general principles of sentencing that apply in the sentencing exercise. His Honour went on to say: "…The use of statistics as a measure of the appropriateness of the sentence has the effect of creating a self-fulfilling range of sentences, which may bear little relationship to the maximum sentence imposed by the legislature." 5 The Crown submitted, correctly in my view, that the inherent limitation on the utility of the statistics is most pronounced in relation to offences which involve a potentially diverse range of criminal conduct as is the case with an offence under s 112(1). In addition, it is self-evident that the greater number of factors specific to an offender, the smaller the statistical base from which might be identified a range of penalties. That is exemplified in the applicant's case. There were only four offenders within the applicant's age range who were also sentenced for a single count following a plea of guilty accompanied by a record of previous conviction of the same type. 6 Whilst it is true that only one per cent of the statistical base of 854 cases attracted a sentence of 7 years, signifying that none of the offences were appropriate to be described as worst case given the statutory maximum of 14 years, the fact that 60 cases attracted a total term of 5 years does no more than establish that in commencing to calculate the applicant's sentence at 5 years, his Honour determined that it was a term of imprisonment commensurate with his assessment of offending below the mid-range, despite the fact that it might be said to be at the upper end of that range. 7 The starting point of 5 years prior to the discount for the plea of guilty must also be viewed as fairly reflecting the interplay of two features of aggravation as provided for in s 21A(2)(d) and s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 ("the Act"). The first concerned the applicant's record of previous convictions, including an offence of break enter and steal in 2004 for which a term of imprisonment was imposed in the Local Court but which was suspended following an appeal to the District Court. His Honour also noted a spread of offences of stealing and receiving stolen property over a ten year period commencing in 1990. I note that the applicant was 35 years of age as at the date of sentence. It is not submitted that his Honour took account of the applicant's prior conviction inconsistent with the approach dictated by this Court in R v McNaughton [2006] nswcca 242; 163 A Crim R 381. 8 In addition, his Honour was also satisfied as provided for in s 21A(2)(g) of the Act, that the loss and damage occasioned by the offence was substantial, by inference at least, not simply by reference to the monetary value of the property stolen but also because personal items of no monetary value but of significant personal value were also taken. His Honour needed to be satisfied that the value of property stolen was substantial beyond reasonable doubt before taking it into account as a feature of aggravation. There is no challenge to that finding. 9 In determining an appropriate sentence his Honour was obliged to have regard to matters mitigating the objective seriousness of the offending as provided for in s 21A(3) of the Act. His Honour did this by applying a discount of 15 per cent for the utilitarian value of the plea of guilty which included a positive finding that this reflected genuine contrition. In circumstances where the plea of guilty was entered the day before the date listed for trial this was a generous finding as was his Honour's finding that special circumstances were made out justifying disturbing the statutory ratio between the non-parole period and the total term as provided for in s 44 of the Act. His Honour found special circumstances on the basis that there was a demonstrated need for ongoing institutional support with a view to the applicant's rehabilitation upon his release. In light of a positive urinalysis result on 6 December 2007 (the day before the applicant was arrested) to the presence of prohibited and prescription drugs whilst the applicant was subject to supervision following sentence being imposed in the Local Court in August 2006 - a matter which his Honour correctly described as not assisting the offender - the finding of special circumstances may also be regarded as a generous finding in the applicant's favour. 10 In passing sentence his Honour was concerned to ensure that the sentencing order reflected not only the need for general deterrence but, given the applicant's particular circumstances, the need for a degree of individual deterrence. 11 In my view the sentence comprising a non-parole period of 2 years and 1 month equating to less than 50 per cent of the total term was within the bounds of his Honour's sentencing discretion and does not otherwise reveal manifest error warranting the intervention of this Court. 12 I propose the following orders: 1. Leave to appeal be granted. 2. The appeal be dismissed. 13 HODGSON JA: I agree. 14 HOWIE J: I also agree. 15 HODGSON JA: Those are the orders of the Court. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.