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Court of Criminal Appeal 10 September 2002

R v Langton

[2002] NSWCCA 382

Assault & violencePublic order & justice offences
CRIMINAL PRACTICE AND PROCEDURE SENTENCE TOTALITY PAROLE PERIOD.

Citation: R v Langton [2002] NSWCCA 382
Court: NSW Court of Criminal Appeal
Date: 10 September 2002
Judge(s): Howie J; Smart AJ

Background

The applicant, a former police officer, pleaded guilty to six offences arising from two separate sets of events. The first set, occurring in July 1990, involved an affray and three counts of assault on young men who were forced to run a gauntlet of police officers wielding batons at Kings Cross police station. The second set involved two counts of perjury committed in 1991 and 1993, when the applicant gave false evidence denying the assaults during criminal proceedings against one of the victims.

At sentencing in the District Court, the applicant received a total effective sentence of three and a half years, with a non-parole period of three years. The perjury sentences were structured to run cumulatively upon each other and upon the assault-related sentences.

The applicant sought leave to appeal on multiple grounds, arguing the sentences were excessive. The principal issues concerned whether the cumulative structure was appropriate and whether the resulting non-parole period was manifestly excessive given the extent of the accumulation.

  • Whether the sentencing judge adequately accounted for the objective seriousness of the offences and relevant mitigating factors, including delay, rehabilitation, and the applicant's mental state at the time
  • Whether parity with sentences imposed on co-offenders (Fish and Swan) required a downward adjustment
  • Whether the accumulation of sentences produced an overall sentence and non-parole period that was unduly lengthy (the totality principle)
  • Whether special circumstances existed to justify a reduction in the statutory proportion between the non-parole period and the head sentence
  • Whether serving a sentence in protection, and the fact that this was the applicant's first custodial sentence, constituted special circumstances

Decision

The Court of Criminal Appeal accepted that the overall head sentence of three and a half years was appropriate and declined to disturb it. The Court rejected the submission that the offences constituted a single course of conduct warranting concurrent sentences, noting that the perjury offences were distinct from the assault and affray and involved separate criminal conduct at separate times. Cumulation of the perjury sentences was therefore justified.

However, the Court found that the three-year non-parole period was manifestly excessive when measured against a head sentence of three and a half years. Howie J noted that where sentences are structured cumulatively, a finding of special circumstances will almost invariably be required to preserve the normal statutory proportion between the head sentence and the parole period. Failing to account for the effect of cumulation will inappropriately compress the parole period.

On the question of what constituted special circumstances, the Court held that neither the applicant's first custodial sentence status nor the need to serve time in protection necessarily required such a finding. The only relevant special circumstance was the need to adjust the non-parole proportion arising from the cumulative structure itself, with a modest additional reduction to reflect the significant delay in prosecuting the matter.

The sentences for counts 5 and 6 were quashed and restructured. The revised sentences maintained the total head sentence but reduced the individual non-parole periods so that the overall proportion between head sentence and parole period was more appropriate.

Orders Made

  • Leave to appeal granted; appeal allowed in part
  • Sentence for count 5 (perjury, 1991) quashed and replaced with 18 months imprisonment commencing 12 May 2003, with a non-parole period of 6 months expiring 11 November 2003
  • Sentence for count 6 (perjury, 1993) quashed and replaced with 18 months imprisonment commencing 12 November 2003, with a non-parole period of 3 months expiring 11 February 2004
  • All other sentences and their commencement dates remained on foot

Key Takeaways

  • Cumulative sentencing will almost invariably require a finding of special circumstances to preserve the statutory proportion between the head sentence and the parole period; failing to make such a finding when structuring sentences cumulatively risks producing a manifestly excessive non-parole period.
  • The mere fact that an offender is serving a first custodial sentence, or must serve that sentence in a protection setting, does not automatically constitute special circumstances warranting a reduction in the non-parole period.
  • Where distinct offences arise from separate events and separate acts of criminal conduct, even if connected in subject matter, concurrent sentences are not necessarily appropriate and cumulation may be justified.
  • Significant prosecutorial delay can warrant a modest reduction in the non-parole period as recognition of the effect of that delay on the offender, even where it does not constitute special circumstances in the traditional sense.
  • In applying the totality principle, the Court of Criminal Appeal confirmed that the appropriate remedy is not necessarily to reduce the overall head sentence but may instead involve restructuring the component sentences to achieve a proportionate outcome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93C (affray), 61 (assault), 327 (perjury)

Cases:
- R v Fish and Swan [2002] NSWCCA 196
- Regina v Chapman (unreported, NSWCCA, 21 May 1998)
- R v Todd (1982) 2 NSWLR 517