MacBlane v R [2025] NSWCCA 52
MacBlane v R [2025] NSWCCA 52 · Read the judgment on AustLII
Catchwords: Sentencing – Break, Enter, And Steal – Ponfield guideline – Rarely appropriate to rely on the guideline anymore
In this decision, one judge has drawn together 15 years worth of reasons why it is now rarely appropriate to cite the guideline judgment for sentencing in break, enter, and steal matters – and pointed out that practitioners who uncritically do so will likely lead the court into error.
The applicant was sentenced for an offence of aggravated break, enter and commit serious indictable offence, namely larceny: he and a co-offender made a large hole in the wall of a motorcycle dealership and stole four motorcycles through the hole. The applicant had an extensive criminal history, and was also on an Intensive Correction Order (‘ICO’) at the time of the offending.
As part of his remarks on sentence, the sentencing judge made reference to the guideline judgment, R v Ponfield (1999) 48 NSWLR 327 (‘Ponfield’). In the course of referring to the guideline, the sentencing judge referred to the applicant’s criminal history and the ICO. The applicant was sentenced to 3 years and 3 months, with a non-parole period of 2 years and 3 months, and appealed on grounds including that the sentencing judge erred by taking into account the applicant’s criminal history when assessing the objective seriousness of the offence.
The Court (Sweeney J, Chen J agreeing, Garling J also agreeing, with additional remarks) found that, given the sentencing judge’s reference to Ponfield and the references thereafter to the applicant’s extensive criminal record of similar offences and his being subject to an ICO at the time of the offence, and given the intermixing of the subjective factors with the objective factors of offending, the sentencing judge’s remarks suggest he considered the criminal record and ICO as being relevant to the objective seriousness of the offence. This was an error (at [42]).
More importantly for this summary, Garling J made additional comments about the current status of Ponfield which can be expected to become the asterisk over any submissions relying on Ponfield.
His Honour emphasised that the offender’s counsel had led the sentencing judge into error by submitting, without any qualification, that the factors from Ponfield were to be considered in assessing the seriousness of the offending (at [3]). Earlier authority (Mapp v R [2010] NSWCCA 269; (2010) 206 A Crim R 297 – ‘Mapp’) made clear as long ago as 2010 that Ponfield is a decision which is of limited utility, and had already largely been overtaken by statute by that stage. In fact, the Crimes (Sentencing Procedure) Act 1999 was introduced after Ponfield itself had been argued, but before the remarks were delivered (at [4]-[5]). Then, between the time that Ponfield was delivered, and the decision of Mapp, there were further important legislative developments: the introduction of the statutory purposes of sentencing (s 3A), the inclusion of statutory aggravating and mitigating factors, which are not to be taken into account if they are inherent in the elements of the offence (s 21A), and a regime of Standard Non-Parole Periods (Division 1A of Part 4). The latter of those provisions introduced a statutory concept of objective seriousness, the effect of which was to exclude factors which may arise in the common law (including some nominated in Ponfield) as affecting reasons for imposing a non-parole period which was different to the Standard Non-Parole Period (at [6]-[12]). Since Mapp, there have been further developments, including the introduction by statute of aggregate sentencing (s 53A), and the High Court decision of Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 (‘Muldrock’). Muldrock explicitly held (at [27] of Muldrock) that matters personal to the offender are not relevant to the assessment of objective seriousness (at [14]-[18]).
All these factors reinforce the view that Ponfield must be treated with caution. Indeed, an unqualified reliance on the so-called ‘Ponfield guidelines’ will surely lead a sentencing judge into error (at [21]). It must be doubtful whether there is any ongoing assistance that can be gained from Ponfield. In order to avoid error, the occasions for citing Ponfield will be very rare indeed, and it should never be cited without drawing the sentencing judge’s attention to the developments in law since the time it was decided (at [22]).