R v Shaw

The applicant then submitted that out of thirty-nine cases for breaking, entering and stealing - a more serious offence than his offence of breaking and entering - only three received a minimum term of three years or more. The submission continued: "Surely a mistake somewhere has been made and [I] will try to the best of my ability to have it fixed." 18 The Crown prepared certain statistical tables on sentences for breaking and entering, some relating to offenders generally and some relating to offenders similar to the applicant. The Crown submitted: "The sentence imposed for the break and enter offence is high when regard is had to the judicial statistics. As the sample of cases is small the statistics are of limited value. Bloomfield (1998) 44 NSWLR 734 [at 739]. They show only eight percent of all offenders (two cases) received full terms of six years … and ninety-two percent received a minimum term of less than three years … When the applicant's individual features are entered the sample is again reduced. However, two offenders received the same full term as the applicant … and two offenders were given a greater minimum term than the applicant …". 19 However, the Crown also submitted that the factors referred to in Veen v R (No 2) (1988) 164 CLR 465 at 477 applied, namely that the applicant's record shows that the offence was not an uncharacteristic aberration, that the applicant had manifested a continuing attitude of disobedience of the law, and that accordingly a more severe penalty than normal was warranted. 20 Further, the circumstances of the offence are aggravated by the fact that it was committed while the applicant was on bail in relation to various offences of which he was charged on 18 February 1997. That bail was granted on 26 February 1997. 21 If the breaking and entering charge were taken in isolation, the sentence would have been a very severe one, in view of the limited damage caused, the fact that nothing was taken, and the fact that no victim was alarmed. Even taken in conjunction with the other factors to which the Crown points, namely, the criminal record and the fact that the offences were committed while on bail, the circumstances do not, to my mind, indicate that this sentence falls within the legitimate range of the sentencing judge's discretion. 22 In my opinion it is appropriate to set aside the sentence on the break and enter charge and substitute a fixed term of two years imprisonment to be served concurrently with the charge in relation to the robbery, to commence on 13 April 1999. 23 The applicant's background and his life so far excite some sympathy. However, in law there is, in my judgment, no possibility of this Court assisting his position further than that. 24 I would propose that leave to appeal be granted and that the appeal be allowed. So far as the sentence for breaking and entering is concerned, I propose that in lieu of the sentence imposed by the sentencing judge on that charge, there be substituted a fixed term of two years imprisonment to be served concurrently with the sentence on the robbery charge and to commence on 13 April 1999. 25 SMART AJ: I agree. 26 IRELAND AJ: I also agree. 27 HEYDON JA: The orders I have proposed will be the orders of the Court. **********