Darcy v R [2022] NSWCCA 54
Darcy v R [2022] NSWCCA 54 · Read the judgment on AustLII
Catchwords: Sentencing – ss 114 and 115 offences – obscure and unintuitive trial procedures
As a Table 1 offence, the various forms of offence in s 114 often offer parties a less serious alternative charge in cases involving robberies and break and enter offences. Unfortunately, the ‘sister’ offence in s 115 committing a s 114 offence, having previously been convicted of an indictable offence, is less well understood. In this decision, the provisions were considered, the ‘unintuitive’ trial procedure was described, and the CCA reinforced that despite appearances, s 115 doesn’t just provide for a higher maximum penalty under s 114 if the offender has a previous indictable conviction.
The applicant pleaded guilty to a large array of property offences: about 33 counts. They all seemingly followed a similar approach, in which the applicant would walk into open premises (at least 13 locations are listed) and take whatever he could find. In some cases it was property like an employee’s backpack, and in one instance it was the day’s takings from a café just before closing, amounting to about $34,000 in cash. For the full array of offending he was sentenced to an aggregate sentence of 6 years and 6 months imprisonment, with a non-parole period of 3 years and 9 months. He appealed against the convictions imposed in relation to four of the 33 charges, asserting that there had been a miscarriage of justice occasioned by his pleas to those offences. Those four offences were pursuant to s 114(1)(d): entering or remaining on land with intent to commit an indictable offence. In each of those four instances, the applicant was also convicted of an offence under s 115, based on the same facts and circumstances. The offence in s 115 is an offence of committing a s 114 offence, having been previously convicted of any indictable offence. Section 114 carries a maximum penalty of 7 years, whereas s 115 carries 10 years.
Bellew J (with whom Beech-Jones CJ at CL agreed, with additional comments; Davies J agreeing with both) observed that the submissions centred around the previous authority of Tillott (1991) 53 A Crim R 46 (‘Tillott’), which held that the offences in ss 114 and 115 are separate and distinct despite appearing to be linked. Additionally, there is an obscure provision in s 152 of the Criminal Procedure Act setting out the trial procedure for an offence under s 115, which both the judgments of Bellew J and Beech-Jones CJ at CL valiantly tried to explain. Respectfully, Beech-Jones CJ at CL’s version seems a little more digestible: Essentially, the procedure for a trial under s 115 requires that there first be a trial under s 114, during which there is no reference to the earlier conviction. Then, if there is a conviction for the new s 114 offence, the accused is to be arraigned under s 115, and there has to be another trial in relation to that offence. As Beech-Jones CJ at CL points out, although that procedure is odd, it at least affords a protection to the accused insofar as they do not face a jury on an indictment that contains both a s 114 offence and a s 115 offence and suffer the prejudice of the jury learning of their previous conviction (at [7]). Importantly for present purposes, this leads to the conclusion, according to Beech-Jones CJ at CL, that despite being counterintuitive, the entire premise is that an offence under s 115 is a separate offence, and not simply an aggravated form of the s 114 offence (at [7]). Broadly, this was the same conclusion that had been reached in Tillott.
Counsel for the applicant had tried to distinguish Tillott on the basis that the applicant had pleaded guilty, whereas Tillott had gone to trial. However, this argument was rejected by Bellew J as being illusory (at [60]) and by Beech-Jones CJ at CL as being contrary to the existence of the procedure set out in s 152 (at [8]). The consequence is that it is possible to be convicted of both a s 114 offence and a s 115 offence in relation to the same conduct – although, as Beech-Jones CJ at CL pointed out, when it comes time to sentence the offender, it will be necessary to ensure that the offender is not punished for the same conduct twice (at [10]).
That said, the Crown Sentence Summary had said that the maximum penalty for the s 114 offences was 10 years on the basis they were ‘second or subsequent offences’ (seemingly relying on s 115). The correct maximum was 7 years. Bellew J was particularly critical of the Crown and defence counsel for not identifying the error, observing that uncorrected mistakes about maximum penalties increasingly common (see [65]-[69]). The sentence was accordingly infected by error and there was a modest reduction of the overall sentence.
It follows that whilst s 114 can be a useful tool in negotiations in relation to a whole host of different types of offending – it is capable of being dealt with in the Local Court, when offences like aggravated robbery and aggravated break and enter typically are not – practitioners should be aware that the provisions are a bit more complicated than they seem at first blush.