The standard non-parole period as per item number 12 of the table to Part 4, Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is 5 years imprisonment. However, as per R v Way (2004) 60 NSWLR 168, whilst the standard non-parole period can be used as a reference point in conjunction with other extrinsic material, such as guideline judgments and the specified maximum penalty – the court must also be mindful of s22 of the Act in attracting a discount for the plea. R v Way (2004) 60 NSWLR 168 at [122]:
In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant.
In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty.
In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s 22 of the Act contemplates that the fact of a plea will attract a discount.
As mentioned above the standard non-parole period is 5 years however, the court must firstly assess the objective seriousness of the offence. The assessment of the objective seriousness was considered in R v Merrin [2007] NSWCCA 255 and Marshall v R [2007] NSWCCA 24 where the court stated at [34]:
Secondly, the section can cover a very diverse range of offending. It is an element of the offence that a “serious indictable offence” is committed. But that category of offence includes any offence that is punishable by life or for a term of 5 years or more; see s 4 of the Crimes Act.
Larceny is punishable by a term of five years and, therefore, is, on its face, at the lower end of seriousness for the type of offences that would fall within s 112(2).
This might suggest that any offence under s 112(2), where the serious indictable offence is stealing, cannot be within the midrange of seriousness because there are many more serous offences that may give rise to a s 112(2) offence. For example, the offence committed in the premises might be a sexual assault committed on a child or an armed robbery.
36 This problem was considered in R v Huynh [2005] NSWCCA 220. Simpson J, with whom the other members of the Court agreed, stated:
[27] The assessment of where the offence lies in the range of offences of its type is to be made by reference to all of the facts and circumstances of the offence, and to the range of offences of its kind which come before the court. One circumstance which is here of relevance in that assessment is the quantity and value of the property stolen.
It is not to the point that the property was recovered. It was, in fact, stolen, before being recovered. The fact that the maximum penalty for stealing barely takes that offence into s112(2) does not of itself determine where the offence lies in the scale of gravity of offences against s112(2).
Certainly, one might ordinarily expect that offences involving violence would be regarded as more serious than stealing. But that does not preclude a finding that an offence under s112(2), where the “serious indictable offence” is larceny, being classified as in the middle of the range.
37 Therefore, in determining whether the offence falls within the mid-range of seriousness, the court has to have regard to the nature of the offence committed in the premises, including its seriousness as against offences of its type generally.
Where that offence is larceny, the guideline judgment in R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327 might assist in determining the relevant factors to be considered in the evaluation of the seriousness of the offence.
So the type of premises entered, the nature and value of the property taken, and whether there is substantial damage to, or ransacking of, the contents of the premises will be relevant considerations (emphasis added).
38 It is also necessary for the court to consider the element of aggravation charged, both as to its nature and what was actually done that gave rise to the aggravating factor. The number of aggravating factors present and the severity of them individually and in combination will also be relevant matters.
Not all aggravating factors are of the same seriousness generally speaking. For example, the infliction of actual bodily harm might not be as serious as the fact that the offender is armed with an offensive weapon.
The nature of the weapon and the actual threats made with it will be of significance. However, when consideration is given to any injury inflicted on the victim it will be relevant to take into account whether it was caused intentionally or recklessly.
The extent of the injury will be significant but it should be noted that the malicious infliction of grievous bodily harm or a wounding leads to a more serious offence under s 112(3).
39 As to the aggravating feature of knowing that a person or person is present in the premises, matters of relevance will be the type of person present in the premises, for example whether there was a child or some other vulnerable person present, and whether the offender knew that the person or persons in the premises were particularly vulnerable.
The time of day will be relevant so that if it is late at night, when the persons in the premises are likely to be asleep, this might indicate that the offence is more serious because the persons are for that reason more vulnerable.
Ponfield Guidelines and the assessment of the objective seriousness for larceny matters:
As per, R v Ponfield [1999] NSWCCA 435 (16 December 1999) at [48]:
A court should regard the seriousness of offence contrary to s112(1) of the Crimes Act as enhanced and reflect that enhanced seriousness in the quantum of sentence if any of the following factors are present. Necessarily, if more than one such factor is present there is accumulative effect upon seriousness and the need for appropriate reflection.
(i) The offence is committed whilst the offender is at conditional liberty on bail or on parole.
(ii) The offence is the result of professional planning, organization and execution.
(iii) The offender has a prior record particularly for like offences.
(iv) The offence is committed at premises of the elderly, the sick or the disabled.
(v) The offence is accompanied by vandalism and by any other significant damage to property.
(vi) The multiplicity of offence (reflected either in the charges or matters taken into account on a Form 1 pursuant to s21 of the CP Act). In sentencing on multiple counts regard must be had to the criminality involved in each: Pearce v The Queen [1998] HCA 57; 1998 72 ALJR 1416.
(vii) The offence is committed in a series of repeat incursions into the same premises.
(viii) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value.
(ix) The offence was committed at a time when, absent specific knowledge on the part of the offender (a defined circumstance of aggravation – Crimes Act s105A(1)(f) ), it was likely that the premises would be occupied, particularly at night.
(x) That actual trauma was suffered by the victim (other than as a result of corporal violence, infliction of actual bodily harm or deprivation of liberty – defined circumstances of aggravation: Crimes Act s105A(1)(c),(d) and (e) ).
(xi) That force was used or threatened (other than by means of an offensive weapon, or instrument – a defined circumstance of aggravation Crimes Act s105A(1)(a) ).
49 It will of course be requisite for a sentencing court to give appropriate weight to matters in mitigation as manifest in the particular case. These will include evidence of genuine regret and remorse and any rehabilitative steps taken by the offender.
Whilst addiction to drugs and alcohol is a relevant circumstance for the Court to consider it is not of itself a mitigating factor. (See R v Henry supra at pars [193] – [203] and [217] to [259]).
50 Section 439 of the Crimes Act obliges this Court to take into account the fact that a person has pleaded guilty and when that plea was indicated. Specification of reasons for any decision not to reduce sentence on account of such plea is mandatory.
