Is A Guideline Judgment Appropriate?
9 The basis upon which the Court might consider issuance of a guideline judgment was elaborated by Spigelman CJ in R v Jurisic 1998 45 NSWLR 209 @ 216-222 and it need not be repeated: See also R v Henry (1999) 46 NSWLR 346 at 351-359; The Honourable J.J. Spigelman "Sentencing Guideline Judgments (1999) 11 Current Issues in Criminal Justice 5; (1999) 73 ALJ 876. The principles are not affected by the subsequent legislation of a procedure for formal application by the Attorney General and the Court, even if that procedure is invoked, is not obliged to issue any guideline unless it believes it appropriate to do so: CP Act s28(b).
10 Recognized circumstances calling for a guideline judgment are perceptions of the prevalence of offence, inconsistency in sentence quantification and emergent patterns of sentence which are either too harsh or too lenient and the requirements of general deterrence: R v Henry & Ors 1999 NSW CCA 111.
11 The DPP has submitted that support for the existence of the factors of prevalence, excessive leniency and inconsistency of sentence in relation to the offence of breaking entering and stealing can be demonstrated.
12 The evidence (within which I include for present purposes any relevant information resource authorized by the CP Act s29A(1)) of the prevalence of the offence in the sense of frequent occurrence is overwhelming. Bureau recorded statistics for the year ending June 1999 specify 80,621 and 46,108 breaking and entering dwellings and non dwellings respectively. Similar recording for the preceding year are 84,192 and 47,843. The fall in rate derivable from comparison of those figures (- 4.2% and - 3.6%) does not deny prevalence.
13 Pursuant to his entitlement (CP Act ss 26(6)(7) and (8)) the Senior Public Defender Mr Nicholson SC (with Mr Stratton) appeared and made submissions which I did not understand to seek to contradict the existence of prevalence of the offence but rather to caution against using it as a trigger for the issuance of a guideline judgment. On the apparent assumption that increase in sentence level would be predicated he invited the Court to refrain from enlivening public expectation that the issuing of a judgment would bring about a reduction in prevalence. To do so, it was said, would be to enter the "law and order" debate. Whilst I have understood the submission to be a reference to that term in popular usage, I comment that law and order are intrinsic objectives of the judicial arm of government.
14 In drawing attention to asserted perils Mr Nicholson referred to tying sentence to prevalence levels. I did not understand such to be sought by either the DPP or the Attorney General and for my part I would not contemplate that there should be any ratio between them, fixed or otherwise. The issue is simply whether the offence is so prevalent as to attract consideration of a guideline judgment being given. The offence is in fact undoubtedly prevalent.
15 The contention by the DPP that there exists a trend towards undue leniency was based upon detection of such as articulated in two judgments of this Court and statistical analysis of some sentencing information.
16 The first case under reference was R v Hayes 1984 1 NSWLR 740 where Street CJ said, inter alia:
"There has developed a tendency to give inadequate weight to the legislative policy which fixes fourteen years as the statutory maximum for this offence. That tendency needs correction"
and
"in the present case the appellant had, in 1981, been sentenced to three years on three charges of break, enter and steal - a sentence passed under what must be regarded as the past, more lenient policy for sentencing for this offence."
17 Three observations might be made. First, the offender was being dealt with on thirty four charges (including those being taken into account on a Schedule); second, the system of remissions prior to the Sentencing Act 1989 was in operation and, third, the case antedated the judgment of the High Court and its remarks relevant to the prescription of maximum sentence in Ibbs.
18 The second case was R v Jones unreported CCA 30 June 1994. Carruthers J (with the express agreement of Badgery-Parker J) observed that in the ten years that had passed since the decision in Hayes there was a marked tendency for sentences not to reflect the concern voiced in it and he concluded:
"The time has come for a reassertion of that statement of policy by the Chief Justice. In my view, the dismissal of the appeal in this case should be looked upon as a correction of the trend which has developed since Hayes to underrate the degree of criminality involved in this offence."
19 Whilst the maximum sentence for an offence is always a relevant consideration in the exercise of the sentencing discretion a particular difficulty arises in this respect with s112. The offence is expressed in terms of breaking and entering and then committing a felony. In the normal course the relevant felony is stealing, however it need not be. There are many other felonies which, at least in theory, could be the subject of a charge under s112 and which are more serious than stealing. It would be unusual where such a felony had been committed for the Crown not to proceed with charges for that felony, which in many cases would carry a penalty greater than the fourteen years for which s112 provides. Nevertheless, the fact that s112 does, in terms, apply to the full range of felonies renders the maximum less than usually useful as an indicator for sentencing where the felony involved in a particular case is not one of the more serious felonies.
20 The argument was developed by reference to a series of graph analyses of sentencing statistics collated by the Judicial Commission. Those particular statistics referred to "higher courts" that is to say the District Court, the Supreme Court and this Court. It is unlikely that the Supreme Court would pass sentence for an offence of breaking entering and stealing unless it was one of multiple counts on an indictment containing at least one considerably more serious charge. Reliance on those particular statistics therefore needs qualification in their omission of reference to the Local Court jurisdiction in which the vast majority of relevant charges are heard and dealt with.
21 I am conscious that the DPP has put:
"In view of the significantly reduced maximum sentence that may be imposed by Magistrates, and the fact that appeals from sentences imposed by Magistrates in relation to this offence would not come before this Court, the submissions concerning the need for a guideline judgment do not review the available evidence concerning sentencing trends in proceedings determined in Local Courts. The objective circumstances of the offences and the subjective features of offenders who are dealt with by Magistrates for this offence are likely to differ significantly to those offenders sentenced in the higher courts."