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Court of Criminal Appeal 4 December 2000

R v Butler

[2000] NSWCCA 525

Public order & justice offences

Citation: R v Butler [2000] NSWCCA 525
Court: New South Wales Court of Criminal Appeal
Date: 4 December 2000
Judge(s): Simpson J, Howie J

Background

The applicant was a 20-year-old woman serving a sentence at Mulawa Correctional Centre for larceny and goods in custody offences. Her parole had been revoked and she was serving the remaining balance of her additional term at the time of the relevant events.

In the early hours of New Year's Eve 1999, the applicant and a co-offender climbed over a barbed wire fence and a brick wall to reach a restricted area of the facility, in what appeared to be a partially planned but largely opportunistic attempt to escape. Both women abandoned the attempt before being discovered, though the sentencing judge found this was because they recognised the attempt would fail, not from any mature change of heart.

Coleman DCJ in the District Court sentenced the applicant to 18 months' imprisonment, with a minimum term of 12 months and an additional term of 6 months, after a guilty plea. The applicant sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the sentencing judge was required under s 24 of the Sentencing Act 1989 to make a formal order directing release on parole at the expiration of the minimum term.
  • Whether the principle of parity required a more lenient sentence for the applicant compared with the identically sentenced co-offender.
  • Whether the sentence of 18 months with a 12-month minimum term was manifestly excessive, having regard to the applicant's youth, the limited planning involved, the abandonment of the attempt, and her efforts at rehabilitation.

Decision

The Court identified a technical error at the outset. Because the total sentence was three years or less, s 24 of the Sentencing Act 1989 required the sentencing judge to make a formal order directing release on parole at the expiration of the minimum term. Coleman DCJ had not done so, noting only that the applicant would be eligible for parole. The Court confirmed this oversight needed to be corrected regardless of the outcome of the substantive appeal.

On parity, the applicant argued she deserved a lesser sentence than her co-offender because the co-offender was three years older and was serving a sentence for murder, suggesting greater culpability on the co-offender's part. The Court rejected this argument, finding that the circumstances did not establish that the parity principle required a more lenient result for the applicant.

The central question was whether the sentence was manifestly excessive. Simpson J concluded that the sentence exceeded the bounds of legitimate sentencing discretion because it failed to give adequate weight to the applicant's youth. While accepting that the attempt was not entirely spontaneous, the Court characterised it as opportunistic and impulsive, with only very limited planning. Limited credit was given for the abandonment of the attempt, tempered by the finding that it was driven by practicality rather than genuine remorse or reflection. New material placed before the Court of Criminal Appeal by affidavit, describing the applicant's further rehabilitation efforts in custody, was also taken into account.

Howie J agreed, adding that the non-parole period could not be assessed in isolation. It had to be considered in light of the total time the applicant had spent in custody, including the balance of the earlier parole period. Given her youth, personal background, and the nature of the original offences, the 12-month non-parole period was excessive and required reduction.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence quashed.
  • New sentence imposed: a total term of 18 months' imprisonment with a non-parole period of nine months, commencing 3 March 2000.
  • Immediate release of the applicant directed, subject to the completion of necessary administrative procedures.

Key Takeaways

  • A sentencing court imposing a term of three years or less under the Sentencing Act 1989 was required to make an express order directing release on parole at the expiry of the minimum term; a mere observation that the offender would be eligible for parole did not satisfy this requirement.
  • The parity principle does not automatically entitle a younger co-offender to a lesser sentence than an older one; the principle requires a demonstrated disparity that is not justified by the relevant circumstances of each offender.
  • Where an escape attempt was opportunistic and impulsive, with only limited planning, those features must be adequately reflected in the sentence, even if spontaneity is not fully established.
  • Abandonment of an escape attempt before detection carries some mitigating weight, but that weight is reduced where the abandonment was motivated by the likelihood of failure rather than genuine reconsideration.
  • In resentencing, a Court of Criminal Appeal may consider fresh evidence of rehabilitation placed before it by affidavit, provided it is admitted on the standard basis applicable to such material.

Legislation and Cases Referenced

Legislation:
- Sentencing Act 1989 (NSW), ss 5(2) and 24

Cases:
No cases were cited by name in the portion of the judgment provided.