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Court of Criminal Appeal 21 June 2002

REGINA v. MacFARLANE

[2002] NSWCCA 250

Assault & violenceDrugsTheft & property
CRIMINAL LAW SENTENCE APPEAL

Citation: [2002] NSWCCA 250
Court: NSW Court of Criminal Appeal
Date: 21 June 2002
Judge(s): Greg James J; Smart AJ

Background

The appellant was a 22-year-old man of Aboriginal and Anglo-Saxon heritage who pleaded guilty in the District Court to four offences: break, enter and steal at a university student union store; common assault on the victim of that break-in; larceny of a wallet from a shopping centre; and assault on a security guard at the same shopping centre. The assault on the security guard involved the appellant producing an uncapped bloodstained syringe, which caused both guards to fear they would be stabbed.

Both series of offences were committed in January and February 2001. The second series occurred while the appellant was on bail for the first. Significantly, all offences were committed while he was on parole from an earlier sentence for break, enter and steal.

The appellant had a prior record including convictions for property offences and an earlier term of imprisonment. He had a serious drug dependency, and evidence before the sentencing court indicated he was heavily affected by medication at the time of the offences. A psychologist's report addressed prospects for rehabilitation, including potential entry into a long-term residential drug rehabilitation program.

  • Whether the District Court gave sufficient weight to the utilitarian value of the guilty pleas and the prospects of rehabilitation in fixing the non-parole periods
  • Whether the ratio of non-parole period to head sentence was appropriate, given the possibility of supervised residential rehabilitation on release
  • Whether the overall sentences properly reflected the principle of totality as articulated in Pearce (1998) 194 CLR 610

Decision

The Court of Criminal Appeal found that the sentencing judge had not given sufficient weight to the utilitarian value of the guilty pleas and the prospects for rehabilitation. The court noted that evidence of contrition, though not described as full or forthright, added substance to the rehabilitation prospects identified by the sentencing judge.

The court also considered that release on parole to a full-time supervised residential rehabilitation facility would carry a quasi-custodial character. Taking this into account, the court concluded that the proportion of the non-parole period to the head sentence was insufficient on counts one and two.

The court allowed the appeal in part, reducing the sentence on count one from three years to two years and six months, and reducing the non-parole period on that count to six months. The sentence on count two was also reduced from nine months to six months. The sentences on counts three and four were left undisturbed. The court directed that consideration be given to making entry into a full-time supervised residential drug rehabilitation course a condition of parole release, with the duration of any such course to be determined by the Probation and Parole Service.

Orders Made

  • Appeal allowed in part; appeals on counts three and four dismissed
  • Count one: sentence quashed; new sentence of two years and six months imprisonment, commencing 20 July 2002 and expiring 19 January 2005, with a non-parole period of six months expiring 19 January 2003
  • Count two: sentence quashed; new sentence of six months imprisonment, commencing 20 July 2002 and expiring 19 January 2003
  • The appellant to be released to supervised parole at the expiration of the non-parole period
  • Consideration to be given to imposing as a parole condition immediate entry into a full-time supervised residential drug rehabilitation course, the duration to be fixed by the Probation and Parole Service

Key Takeaways

  • The Court of Criminal Appeal confirmed that the proportion between the non-parole period and the head sentence must adequately reflect the prospects of rehabilitation, including where release on parole will involve a supervised residential program with quasi-custodial characteristics.
  • Guilty pleas carry utilitarian value that sentencing courts are required to factor into the overall sentencing exercise, including when fixing the non-parole period.
  • A finding that prospects of rehabilitation exist, supported by evidence of at least some contrition, can affect the appropriate ratio of non-parole period to head sentence rather than merely the head sentence itself.
  • The court endorsed the mechanism of attaching drug rehabilitation requirements as a condition of parole, delegating the specific duration of any such course to the Probation and Parole Service rather than fixing it judicially.
  • In applying the totality principle from Pearce (1998) 194 CLR 610, the court evaluated each offence's individual criminality alongside the overall picture before concluding that the original sentences fell into error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 112(1), 117
- Justices Act 1902 (NSW), s 51

Cases:
- Pearce v The Queen (1998) 194 CLR 610