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Court of Criminal Appeal 4 January 2002

R v Killick

[2002] NSWCCA 1

Also reported as (2002) 127 A Crim R 273
Assault & violenceTheft & propertyFirearms & weaponsPublic order & justice offences
MUST START AT EXPIRATION OF NON PAROLE PERIOD OF PRIOR SENTENCES ALLOWANCE FOR EARLY PLEA OF GUILTY LAW REFORM

Citation: R v Killick [2002] NSWCCA 1
Court: NSW Court of Criminal Appeal
Date: 4 January 2002
Judge(s): O'Keefe J; Smart AJ

Background

The applicant, who represented himself, pleaded guilty in the District Court to a series of serious offences including two armed bank robberies, discharging a firearm to prevent lawful apprehension, escaping custody, assaulting an air crew member, detaining a person for advantage, and stealing a motor vehicle. The offences were substantial in both number and gravity, involving armed threats to bank staff and customers, shots fired at a pursuing police officer, and further violence committed after the applicant escaped from custody.

At first instance, Mahoney DCJ in the District Court intended to impose cumulative head sentences totalling 28 years and cumulative non-parole periods totalling 15 years, both commencing 9 May 2000. The applicant sought an extension of time and leave to appeal against the severity of the sentences. The Court of Criminal Appeal granted the extension, noting that the applicant had lodged his original application promptly from prison but it was mislaid by gaol authorities.

  • Whether the commencement dates of subsequent cumulative sentences were correctly structured, particularly whether they were required to begin at the expiration of the non-parole period of the prior sentence rather than the expiration of the full head sentence.
  • Whether the failure to set a non-parole period for one of the robbery counts caused the intended total non-parole period to be exceeded.
  • Whether the sentencing structure created anomalies, including the possibility of the applicant moving in and out of custody across the 28-year period.
  • Whether section 57 of the Crimes (Sentencing Procedure) Act 1999 required the escape sentence to be added consecutively at the end of the series.
  • Whether the legislation itself required reform to prevent accumulation provisions from producing an unacceptably low aggregate of head sentences relative to the criminality involved.

Decision

The Court identified several structural errors in the sentences as imposed. First, the omission of a non-parole period on the 11-year robbery count meant the applicant would be required to serve the entirety of that term in custody, inflating the effective total non-parole period from the intended 15 years to 19 years. Second, the commencement dates of subsequent cumulative sentences were anchored to the expiration of prior head sentences rather than to the expiration of prior non-parole periods, which is the correct approach. This created a series of gaps during which the applicant could theoretically be released on parole and then returned to custody when a later sentence commenced, an outcome the Court described as neither sensible nor acceptable.

Smart AJ, with whom O'Keefe J agreed, held that consecutive sentences must be structured so that each subsequent sentence commences at the expiration of the non-parole period of the preceding one. This avoids the absurdity of the applicant serving his custodial time in disconnected blocks spread over nearly three decades. The Court re-ordered the sentences so that the total custodial period ran continuously.

The Court also addressed section 57 of the Crimes (Sentencing Procedure) Act 1999, which requires an escape sentence to be served consecutively with any other sentence. Acknowledging some constructional uncertainty, Smart AJ placed the escape sentence at the end of the series as a matter of caution. The Court further gave effect to the trial judge's intentions regarding the Form 1 matters (two unlicensed pistols taken into account on the detaining offence) and the concurrent steal motor vehicle sentence, clarifying points that the judge's written reasons had left ambiguous.

Finally, Smart AJ flagged a broader legislative concern. The accumulation provisions in sections 55(2) and (4) of the Crimes (Sentencing Procedure) Act 1999 can operate to reduce the total of head sentences to a level that fails adequately to reflect overall criminality. The Court observed that the Legislature should consider whether courts ought to be empowered, at the conclusion of a multi-offence sentencing exercise, to add portions of head sentences that would otherwise be subsumed and effectively extinguished by the operation of cumulative non-parole periods.

Orders Made

  • Extension of time to seek leave to appeal granted.
  • Leave to appeal against sentences granted.
  • Appeal allowed in part; all sentences quashed and replaced as follows:
  • Detain for advantage: 3 years imprisonment, commencing 4 March 1999; non-parole period of 2 years ending 3 March 2001.
  • Assault member of air crew: 7 years imprisonment, commencing 4 March 2001; non-parole period of 3 years 6 months ending 3 September 2004.
  • Maliciously discharging a firearm: 7 years fixed term, commencing 4 September 2003.
  • Armed robbery (Mittagong bank): 9 years imprisonment, commencing 4 September 2005; non-parole period of 5 years ending 3 September 2010.
  • Armed robbery (Bowral bank): 13 years imprisonment, commencing 4 September 2009; non-parole period of 1 year ending 3 September 2010.
  • Escape: 5 years imprisonment, commencing 4 September 2010; non-parole period of 2 years 6 months ending 3 March 2013.
  • Steal motor vehicle: 6 months fixed term, commencing 4 March 1999 (concurrent).

Key Takeaways

  • Consecutive sentences must be structured so that each subsequent sentence commences at the expiration of the non-parole period of the immediately preceding sentence, not at the expiration of the full head sentence. Failure to do so creates gaps that can produce absurd results, including the possibility of an offender alternating between custody and liberty over the span of a single sentence structure.
  • Where a sentencing court omits to set a non-parole period for one count in a series, the full head sentence for that count must be served in custody, which can inflate the effective aggregate non-parole period well beyond the court's stated intention.
  • Under section 57 of the Crimes (Sentencing Procedure) Act 1999, a sentence for escape must be served consecutively with any other sentence of imprisonment, and the Court of Criminal Appeal treated this as requiring it to be placed at the end of the cumulative series.
  • Sentencing documents beyond the formal reasons, including signed Form 1 notices and handwritten endorsements on indictments, can be used to resolve ambiguities about which offences take into account uncharged matters and which sentences run concurrently.
  • The Court of Criminal Appeal expressly called on the Legislature to consider amending the accumulation provisions in the Crimes (Sentencing Procedure) Act 1999 to prevent the total of head sentences from being reduced, through the operation of those provisions, to a level that does not adequately reflect the criminality involved in serious multi-offence cases.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 55(2), 55(4), 57

Cases
- Carrion (1994) 113 A Crim R 39
- R v Thompson (2000) 49 NSWLR 282
- Mill v The Queen (1988) 166 CLR 59
- Lavelle (1994) 72 A Crim R 402
- Pearce v The Queen (1998) 194 CLR 610