LAWS1022/JURD 7122 - Criminal Laws Assessment Answer

Brief Facts

James McNulty admitted to stealing a car on six charges (Crimes Act 1900 (NSW), s. 154F). 1 The NSW Police started a monitoring operation after a string of automobile thefts from outside of homes in Sydney's northern beaches neighbourhoods. He is 34 years old, Mr. McNulty. His criminal history includes two convictions for marijuana possession (in 2012 and 2015) as well as one for drunk driving (in 2014). (mid-range). Mr. McNulty graduated from high school in 2005 and enrolled in a bachelor's programme in chemical engineering in 2006. He started smoking cannabis frequently when he was a student, and his dedication to his academics decreased. In 2007, he dropped out of his course. He was jobless for around two years. He has sporadically worked in several auto detailing firms since 2009. He developed a connection with a coworker at one such company who convinced Mr. McNulty that the "industry" of auto theft offered lucrative opportunities.

Over the course of two months, McNulty was seen breaking into a luxury car that was parked on the street or in a driveway 12 times and then driving away. On the most recent of these occurrences, Thursday, February 17, 2022, the police stopped him, took him into custody, and charged him with violating Section 154F. According to Section 154G of Crimes Act 1900 (NSW), the maximum penalty imposed upon the guilty is an imprisonment for 14 years. It has been specified and admitted by the learned Magistrate that ten years of imprisonment is not a trifling penalty.

Statement of Defence

1. However, considering the aggravating and mitigating factors in accordance with s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). It has been stated that the accused sometimes used a screwdriver to access and start the ignition of the cars. One of the major factors to be considered is that whether the offense was committed under the influence of extreme mental or emotional disturbance, which brings Section 21A into play. However, it is to be noted that one of the major component required to bring under the said provision is the presence of aggravating and mitigating circumstances to constitute the stipulated offence. Whereas, it is to be noted that there is no proven or significant threat to public safety. that is a prerequisite under Section 21A of the Act.

2. It is to be noted that according to Dr Royce (psychologist), n Mr McNulty likely met the criteria for a major depressive disorder at the time of the offences based on his reports and medical records. Mr McNulty has been further suspected of undertaking heavy cannabis use as a type of “self-medication”. Despite a lack of statutory clarity, McClellan CJ at CL (Simpson J and Barr AJ concurring) decided that all facets of an offender's mental health and competence must be taken into account when sentencing federal criminals in DPP (Cth) v. De La Rosa [2010] NSWCCA 194. It is crucial to consider " what the probable consequences of the ingestion of the particular drug by the particular offender were, and whether the offender foresaw those consequences" when determining whether an offender's own actions prevent a mental condition from qualifying as a mitigating circumstance. The petitioner was required to prove that his mental state acted as a mitigating factor.

3. Further, in the Magistrate’s Court, he was sentenced for five years imprisonment. Whereas, a local court cannot impose sentence for a period of more than two years  for any single offence. The Law Council views mandatory sentencing as having a risk of producing unfair, severe, and excessive punishments if the penalty does not correspond to the offence. Parliament is unable to predict whether a minimum obligatory sentence would be fair and acceptable in all potential situations where an offence may be committed. Mandatory sentencing has been used in various recorded instances with anomalous or unfair outcomes.  When enacting criminal laws in Australia, it is common practise to set a maximum sentence that may be imposed upon conviction depending on the relative seriousness of the offence as determined by the parliament. According to a variety of variables, this method offers courts wide latitude to impose a sentence up to and including the maximum. These elements include the victim's experience with the crime, the accused's background, and the circumstances surrounding the crime. When deciding on an offender's sentence, the court must weigh the goals and guiding principles of sentencing in order to determine whether the circumstances warrant imposing a period of jail.

4. The Magistrate, further, in his judgment has pronounces application of 25% discount under the mandatory statutory formula. Mandatory sentencing regimes provide judges instructions on how to use their sentencing authority. For specific offences, these rules mandate that offenders be immediately imprisoned or, in some situations, held for a minimum amount of time. Even if past behaviour is the best indicator of future behaviour, predictions are frequently wrong, and mandatory sentencing policies are thought to be particularly bad at doing so. Mandatory sentencing policies will choose a lot of "false positives" in addition to those criminals who will continue to commit crimes. the law states that if someone submit a plea of guilty to a criminal charge, you may be eligible to a reduction of your sentence by up to 25% from the one that would have been imposed on you if you had been convicted after a trial. Depending on when the guilty plea is made, the discount's size will vary. Ultimately, the reduction in your sentence will be smaller the longer you put off entering a guilty plea in the proceedings.

5. Mr McNulty is sentenced to an aggregate sentence of five years imprisonment with a non-parole period of three years and six months. This is challenged, as the term of 5 years is extraordinary for an accused of theft of motor cycle. The court must record its justifications for extending or shortening the usual non-parole period in accordance with Section 54B(4). 

6. However, contrary to the available factual circumstances and the evidences, the Learned Magistrate has taken into account the SNPP for the s 154G of the Crimes (Sentencing Procedure) Act 1999 (NSW). However, under Section 22 of the said Act, guilty plea is to be taken into account for the offences not dealt with indictment. According to subsection (1) of Section 22 of the Act “ In passing  sentence  for an offence on an  offender  who has pleaded guilty to the offence, a  court  must take into account:

(a) the fact that the offender has pleaded guilty, and

(b) when the offender pleaded guilty or indicated an intention to plead guilty, and

(c) the circumstances in which the offender indicated an intention to plead guilty,and may accordingly impose a lesser penalty than it would otherwise have imposed.”

The legal system acknowledges that a guilty plea serves the community since it shortens courtroom time and reduces the burden on the criminal justice system. Therefore, a term that would have been given after a conviction after a trial is reduced for an offender who enters a plea of guilty to a charge. Thus, for an offence that the accused has not been charged nor has he plead guilty, he has been wrongly sentenced, which are in clear violation of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Possible Alternative Sentences

1. In accordance with Section 99 of the Crimes (Sentencing Procedure) Act 1999 (NSW), Any further requirements for a conditional release order may be imposed by the sentencing court at the time of sentencing or later on the application of a community corrections officer, a juvenile justice officer, or the offender. It may also vary or revoke any such additional restrictions. Further, In addition to the aforementioned, a rehabilitation or treatment condition that mandates the offender to participate in a rehabilitation programme or receive treatment, an abstention condition that forbids the offender from using alcohol, drugs, or both, a non-association condition that forbids association with specific people, a place restriction condition that forbids frequenting or paying visits to a specific location, a supervision condition that mandates the offender to report to a supervisor.

2. Apart from the aforementioned the designated CCO is vested with additional powers and discretion regarding the assessment of suitability regarding the place of restriction prohibiting weed and drinking in case of the accused. Section 89 of the Crimes (Sentencing Procedure) Act 1999 (NSW) states that the Probation and Parole Service is required to look into and report to the court on the topics mentioned in section 86 when an offender is referred for assessment (1). Additionally, the rules may set forth how investigations will be conducted and reports will be created for the purposes of this Part. For instance, a curfew imposed for less than 12 hours in any 24 hours could stop him undertaking the same during the night hours, and consequently, bad behaviour such as carjacking and drug purchasing may be taken cognizance of and shall be dealt with according the stipulated and applicable laws and regulations.

3. With reference to the Condition of Abstentation, as stipulated under Section 73 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court must issue a warrant for the offender's commitment to a periodic detention facility as soon as is reasonably possible after issuing a periodic detention order. The warrant must also be in, or substantially in, the form specified by the regulations and must be signed by a justice.

4. Additionally, as stipulated under Section 73A of the Crimes (Sentencing Procedure) Act 1999 (NSW the following conditions of an intensive correction order may be imposed (as directed by the sentencing court): a home detention condition, an electronic monitoring condition, a curfew condition imposing a specific curfew, a community service work condition requiring the performance of community service work for a specified number of hours (not exceeding 750 hours or the number of hours prescribed by the regulations), and a curfew condition imposing a specified curfew, and a place restriction condition prohibiting the frequenting of or visits to a particular place or area. The goal of mandatory sentencing programmes is to guarantee proper punishment for criminal behaviour. Judges, according to the Crime Victims Support Association (CVSA), are mostly isolated from society's norms, frequently reside and work in affluent neighbourhoods with low crime rates, and seldom undergo physical attack themselves. It is said that as a result, courts frequently treat criminals too leniently.

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