Citation: Attard v R [2000] NSWCCA 299
Court: Court of Criminal Appeal, New South Wales
Date: 11 August 2000
Judge(s): Smart AJ
Background
The appellant was a 23-year-old man who came before the Drug Court in July 1999 on three series of offences involving heroin possession, driving offences, and motor vehicle theft. He was admitted into a Drug Court program under suspended sentences. His program was terminated after he committed further offences on 24 November 1999.
On 16 December 1999, the Drug Court revoked the earlier suspended sentences and imposed final sentences. The overall structure gave the appellant a total effective sentence of 12 months minimum (non-parole) and 3 months additional (parole) term. The sentencing judge made no express reference to whether special circumstances existed, despite the accumulation of sentences across multiple proceedings.
The appellant appealed to the Court of Criminal Appeal, arguing the sentencing judge had failed to properly consider special circumstances and had departed from the usual ratio between minimum and additional terms without explanation.
Legal Issues
- Whether the Drug Court judge erred by failing to consider special circumstances, including the accumulation of sentences, when imposing the final sentences.
- Whether the departure from the usual ratio between minimum term and additional term required explanation.
- What the appropriate sentence was upon resentencing, taking into account post-sentence events including the appellant's circumstances in custody.
Decision
Smart AJ found that the sentencing judge had departed from the usual ratio between the minimum and additional terms without giving any explanation for doing so, and had not addressed the question of special circumstances arising from the accumulation of the sentences. This constituted a demonstrable error, warranting the Court of Criminal Appeal to intervene and resentence the appellant.
On resentencing, the Court accepted that special circumstances existed. These included the appellant's youth, the fact that these were his first full-time custodial sentences, and the accumulation of the sentences across the proceedings. The Court also noted that extended supervision upon release would be necessary to address the appellant's entrenched drug dependency.
The Court also received fresh evidence about the appellant's time in custody. He had been moved repeatedly between correctional facilities, making it difficult to complete courses or receive treatment. He had been assaulted twice by other inmates and was placed on protection, circumstances that had not been anticipated at the time of sentencing.
Taking all of these matters into account, Smart AJ restructured the sentence on the most serious count (the 24 November 1999 taking and driving offence) to produce a total effective sentence of 15 months with a non-parole period of 10 months, reflecting the applicable ratio for a case with special circumstances.
Orders Made
- Appeal dismissed on counts 1 to 14 (inclusive) and count 16.
- Appeal allowed on count 15 (taking and driving a motor vehicle, 24 November 1999); original sentence quashed.
- In lieu of the sentence on count 15, the appellant sentenced to 10 months imprisonment with a non-parole period of 5 months, commencing 24 April 2000.
- Appellant to be released on parole on 23 September 2000, subject to supervision by the Probation Service and compliance with reasonable directions, particularly those relating to drug dependency treatment.
Key Takeaways
- A sentencing court's failure to address special circumstances expressly, including where sentences are accumulated, can constitute a demonstrable error warranting appellate resentencing.
- Under the Drug Court Act 1998, an appeal against a final sentence imposed after termination of a Drug Court program proceeds by way of rehearing, and the appellate court may receive additional evidence before resentencing.
- Youth, the absence of any prior full-time custodial sentence, and the accumulation of sentences across multiple proceedings were each identified as factors capable of constituting special circumstances justifying a longer additional (parole) term relative to the non-parole period.
- Post-sentence events in custody, including repeated assaults and enforced placement on protection, formed part of the evidentiary basis on which the Court of Criminal Appeal resentenced the appellant.
- Departing from the usual ratio between minimum and additional terms requires the sentencing court to explain its reasoning; an unexplained departure is itself a basis for appellate intervention.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5AF
- Drug Court Act 1998 (NSW), s 7(2)
Cases:
- R v McCrea (Court of Criminal Appeal, unreported, 11 August 2000)