Citation: Carr v R [1999] NSWCCA 200
Court: NSW Court of Criminal Appeal
Date: 23 July 1999
Judge(s): Studdert J; Simpson J
Background
The appellant had pleaded guilty before two separate District Court judges to a series of offences committed on different occasions. Before Judge Armitage, he pleaded guilty to attempting to steal a motor vehicle and assault occasioning actual bodily harm, both arising from an incident in Dubbo in November 1993. For those matters he received fixed terms of imprisonment. Before Judge Downs, he pleaded guilty to sexual intercourse without consent arising from a separate incident in Warren in January 1997, and received a four-year sentence comprising a three-year minimum term and a one-year additional term, commencing immediately after the expiry of the earlier fixed terms.
The appellant was Aboriginal, 24 years old at the time of sentencing, and had a history of heroin and alcohol use. He had failed to appear for his original trial on the 1993 matters, explaining that he feared violence from a co-offender, and spent a significant period in custody before being apprehended on a bench warrant.
On appeal, the appellant challenged both sets of sentences on grounds that included parity with a co-offender and the adequacy of the discount for his guilty plea. The primary focus of the Court's analysis, however, became whether the structure of the accumulated sentences produced an appropriate parole period.
Legal Issues
- Whether the fixed term sentences imposed by Judge Armitage were excessive, having regard to parity with a co-offender (Hammond) and the discount appropriate for the guilty plea given its late timing and the uncertain prospects of conviction at the time.
- Whether the sentence imposed by Judge Downs for the sexual offence was excessive in light of the applicant's subjective circumstances.
- Whether, in the context of accumulated sentences, special circumstances existed under s 5(2) of the Sentencing Act justifying an adjustment to the ratio of minimum term to additional term for the sexual offence.
Decision
On the fixed term sentences, the Court declined to intervene. The co-offender Hammond had only been charged with the attempted motor vehicle theft, not the assault, and had spent months in custody before receiving a recognizance that was substantially explained by serious concerns about his risk of self-harm. These distinctions made direct parity comparison with the appellant difficult. The Court also noted that the appellant's own counsel had urged the sentencing judge to impose precisely the sentences that were given, and the Crown had not opposed that course. While that fact did not relieve Judge Armitage of the obligation to impose an appropriate sentence, the Court was not persuaded any error had been made.
On the sexual offence sentence, the Court considered the totality of the criminal behaviour across all sentences, which amounted in aggregate to four years and nine and a half months in full terms. The Court found that this aggregate was not inappropriate viewed as a whole.
However, the Court identified an error in the structure of the sentence for the sexual offence. Because the sentences were accumulated, the available parole period (the additional term) was disproportionately short relative to the total time the appellant would serve before first being eligible for release. Under s 5(2) of the Sentencing Act, the default ratio of minimum to additional term is three to one, but the accumulation of sentences constituted special circumstances justifying a departure from that ratio. The Court also took into account the appellant's rehabilitation needs and the assistance he would require with alcohol on release. The minimum term for the sexual offence was reduced to two years and three months, with the additional term increased to one year and nine months.
Orders Made
- Leave to appeal against the sentence imposed by Judge Armitage on 13 October 1998 was granted; that appeal was dismissed.
- Leave to appeal against the sentence imposed by Judge Downs on 14 November 1998 was granted; that appeal was allowed; the sentence was quashed.
- In lieu of the quashed sentence: a minimum term of two years and three months commencing 14 October 1998 and expiring 13 January 2001, and an additional term of one year and nine months commencing 14 January 2001, being the first date upon which the appellant was eligible for release on parole.
Key Takeaways
- Where sentences are accumulated, the totality principle requires a sentencing court to look beyond the arithmetic of individual sentences and assess whether the combined result is appropriate for the overall criminal conduct.
- Under s 5(2) of the Sentencing Act, the accumulation of sentences can itself constitute special circumstances justifying departure from the standard three-to-one ratio of minimum to additional term, so as to ensure a proportionate parole period across the full sentence.
- A significant disparity in the charges faced by a co-offender, together with individual mitigating factors particular to that co-offender, can defeat a parity argument even where the co-offender received a more lenient sentence.
- The Court of Criminal Appeal confirmed that a sentencing judge is not relieved of the obligation to impose an appropriate sentence merely because the defendant's counsel and the Crown both endorsed a particular outcome.
- Rehabilitation needs and the prospect of post-release support are matters the court may weigh when determining the length of the additional term in an accumulated sentence structure.
Legislation and Cases Referenced
Legislation
- Crimes Act (NSW): ss 59, 61I, 154AA, 344A
- Sentencing Act (NSW): s 5(2)
Cases
- R v Winchester (1991) 58 A Crim R 345
- R v Fernando (1992) 76 A Crim R 58
- Mill v The Queen (1988) 166 CLR 59
- R v GDR (1994) 35 NSWLR 376
- R v Simpson (1992) 61 A Crim R 58