Citation: Regina v Liddicoat [2000] NSWCCA 111
Court: New South Wales Court of Criminal Appeal
Date: 13 March 2000
Judge(s): Simpson J; Smart AJ
Background
The applicant pleaded guilty in the District Court to two offences arising from events on 29 March 1998: being carried in a stolen conveyance without the owner's consent, and assault with intent to rob in circumstances of aggravation. The assault charge arose when she approached a woman outside the Petersham fire station and attempted to take her handbag by force, with a knife in her possession. Her co-offender remained in the stolen vehicle during the incident and the victim retained her bag.
Judge Mahoney sentenced the applicant to a total of four years penal servitude on the major charge, structured as a three-year minimum term and a one-year additional term, plus a fixed twelve-month term on the lesser charge. The applicant sought leave to appeal on two grounds: parity with her co-offender's sentence following his successful appeal, and failure to find special circumstances warranting a restructured sentence.
The applicant had a long history of drug dependency and had been on a methadone program since 1990. She had lost custody of all four of her children, and the recent removal of her youngest child was said to have triggered a relapse into cocaine use around the time of the offences.
Legal Issues
- Whether the sentencing judge erred by failing to find "special circumstances" that would justify departing from the conventional minimum-to-additional term ratio under the Sentencing Act 1989
- Whether the applicant's sentence was disproportionate to that of her co-offender, Cook, in light of Cook's successful appeal and re-sentencing by the Court of Criminal Appeal
- Whether the sentencing judge adequately accounted for the applicant's full period of pre-sentence custody
Decision
On the parity ground, the Court acknowledged that Cook's re-sentencing had narrowed the gap between the two offenders' minimum terms to approximately 16.5 percent. However, Cook faced more numerous and more serious charges and had an extensive prior record including three armed robbery offences. The Court was not persuaded that the remaining disparity failed to reflect the genuine difference in their respective criminality, and declined to allow the appeal on this basis alone.
On pre-sentence custody, the sentencing judge had noted he took eight days into account, but a further month and eighteen days had not been accounted for due to a misunderstanding about the applicant's actual time in custody. The Court noted this was an error not of the judge's making, and that the applicant was entitled to the benefit of that period, preferably through backdating.
The central ground on which the appeal succeeded was the failure to find special circumstances. The Court found that the applicant's sustained, if only partially successful, efforts at rehabilitation through the methadone program and Narcotics Anonymous, combined with her demonstrated ongoing need for supervision after release, warranted a finding of special circumstances. The sentencing judge had not expressly addressed this question in the applicant's case, and the Court concluded the omission amounted to error.
Rather than reducing the total sentence, the Court restructured it by extending the additional term to two years while reducing the minimum term correspondingly, leaving the four-year total intact.
Orders Made
- Leave to appeal granted.
- Appeal allowed; applicant re-sentenced on the charge of assault with intent to rob to a total term of penal servitude for four years commencing 11 December 1998, comprising a minimum term of two years (11 December 1998 to 10 December 2000) and an additional term of two years (11 December 2000 to 10 December 2002).
- Sentence on the lesser charge (being carried in a conveyance without owner's consent) left undisturbed.
Key Takeaways
- Where a sentencing court fails to expressly address the question of special circumstances in the face of evidence pointing squarely towards them, that omission may constitute an error warranting intervention on appeal.
- A lengthy history of drug dependency, participation in rehabilitation programs, and a demonstrated need for supervised support after release can collectively constitute special circumstances justifying an extended additional term under the Sentencing Act 1989.
- Restructuring a sentence by extending the additional term while reducing the minimum term, without altering the total, is an available remedy when special circumstances are established but the overall penalty is otherwise appropriate.
- In dismissing the parity ground, the Court of Criminal Appeal confirmed that a comparison between co-offenders must account for the full picture of each individual's criminality and the specific charges faced, not merely the arithmetic difference in minimum terms after any re-sentencing.
- Entitlement to pre-sentence custody credit extends beyond any period known to the sentencing judge at the time; inaccurate information provided to the court about time served does not extinguish the offender's entitlement.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 21
- Sentencing Act 1989 (NSW)
Cases:
- Cook [1999] NSWCCA 234 (unreported)
- The Queen v Postiglione (1997) 71 ALJR 875
- R v Fernando (1992) 76 A Crim R 58
- R v Hickey (unreported, NSW Court of Criminal Appeal, 27 September 1994)