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Court of Criminal Appeal 21 June 2000

Regina v Robinson

[2000] NSWCCA 182

Theft & propertyPublic order & justice offences
APPEAL AGAINST SENTENCES SENTENCES MANIFESTLY INADEQUATE DRUG AND ALCOHOL ABUSE SPECIAL CIRCUMSTANCES.

Citation: Regina v Robinson [2000] NSWCCA 182
Court: New South Wales Court of Criminal Appeal
Date: 21 June 2000
Judge(s): Priestley JA; Foster AJA; Smart AJ

Background

The respondent was sentenced in the Sydney District Court in November 1999 in respect of a break, enter and steal offence (and an associated assault taken into account on a Form 1) and a separate charge of escape from lawful custody. The offending arose against a background of significant criminal activity in late 1997 and early 1998, driven by a heroin habit the respondent had developed after moving to New South Wales from Queensland.

The sentencing judge imposed a fixed term of six months for the escape and an eighteen-month sentence (minimum nine months, additional nine months) for the break, enter and steal offence. She did so after taking active steps to have the escape charge committed to the District Court so that both matters could be dealt with together, allowing her to structure the sentences in a way that preserved an extended period of supervised rehabilitation for the respondent.

The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912, contending both sentences were manifestly inadequate.

  • Whether both sentences imposed by the District Court were manifestly inadequate.
  • Whether s 34(1) of the Correctional Centres Act 1952 (now repealed) or s 57 of the Crimes (Sentencing Procedure) Act 1999 governed the sentencing for the escape offence, and what effect that had.
  • Whether s 55(1) of the Interpretation Act 1987 operated to preserve the more lenient provisions of the repealed legislation.
  • How the totality principle applied on re-sentencing, given that s 57 of the new Act operates more harshly than the provision it replaced.
  • Whether special circumstances justified a variation of the standard ratio between the non-parole period and the balance of the sentence.

Decision

The Court of Criminal Appeal accepted the Crown's submissions that both sentences were manifestly inadequate and allowed the appeal. The Court proceeded to re-sentence the respondent.

A central issue on re-sentencing was which legislative regime applied to the escape offence. The Court held that s 57 of the Crimes (Sentencing Procedure) Act 1999 governed the matter. That section requires a sentence for escape to be accumulated upon all other sentences, whether existing or imposed in the same proceedings. This is a more stringent outcome than the position under the now-repealed s 34(2) of the Correctional Centres Act 1952, under which the sentencing judge had treated the sentences as concurrent. The Court also held that s 55(1) of the Interpretation Act 1987 had no application, because s 57 of the new Act does not relevantly increase the penalty for escape; it changes only the accumulation requirement.

The Court acknowledged that s 57 produced a harsher result for the respondent than the repealed provision, and took that into account when applying the totality principle to the substituted sentence. The respondent's subjective circumstances, including his lengthy drug-free period in Queensland, the courses he was undertaking in custody to address his heroin addiction, and the question of special circumstances, were all considered in arriving at the re-sentence.

Orders Made

  • The sentence for break, enter and steal was set aside and substituted with a sentence of imprisonment for two years, with a non-parole period of twelve months, commencing 7 June 1999, with the non-parole period expiring 6 June 2000.
  • The sentence of six months for escape to commence on 7 June 2000 and expire on 6 December 2000.
  • The respondent to be eligible for parole on 6 December 2000, with the parole period expiring on 5 June 2001.

Key Takeaways

  • Section 57 of the Crimes (Sentencing Procedure) Act 1999 requires that a sentence for escape from custody be accumulated upon all other sentences in existence or imposed in the same proceedings, with no discretion to make it concurrent.
  • The Court of Criminal Appeal confirmed that s 55(1) of the Interpretation Act 1987 does not preserve the more lenient accumulation rules under the repealed Correctional Centres Act 1952, because the new provision does not increase the penalty for the offence itself.
  • Where new sentencing legislation operates more harshly on a particular offender than the repealed provision it replaced, that disparity is a relevant factor under the totality principle when the court constructs the overall sentencing package.
  • A Magistrate's procedural decision to decline dealing with an escape charge until a related matter was resolved in a higher court can create practical complications for a District Court judge attempting to structure sentences so as to preserve meaningful rehabilitation conditions.
  • Sentences for serious property offending accompanied by violence, committed while the offender was on bail and driven by drug dependency, will attract close scrutiny on a Crown appeal for manifest inadequacy, even where the offender has significant mitigating subjective circumstances.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5D, 26, 63
- Correctional Centres Act 1952 (NSW), s 34(1)
- Crimes Act 1900 (NSW), ss 112, 310D
- Justices Act (NSW), s 51A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 55(5), 57
- Interpretation Act 1987 (NSW), s 55(1)

Cases
- R v Thomson (CCA, unreported, 21 May 1986)
- R v Machinroth (CCA, unreported, 1998)
- R v Ertl (CCA, unreported, 7 May 1997)
- R v Crombie (CCA, unreported, 15 May 1999)
- The Attorney-General's Application (No 1)
- R v Rose (CCA, unreported, 23 May 1996)
- Griffiths v R (1977) 137 CLR 293
- R v Carrion [2000] NSWCCA 191