Citation: Clegg v Regina [2002] NSWCCA 394
Court: NSW Court of Criminal Appeal
Date: 23 September 2002
Judge(s): Smart AJ, Buddin J
Background
The applicant was an offender who had accumulated a series of sentences over several years arising from multiple matters, including robbery in company, aggravated break and enter in company, and various driving offences. A key sentencing event occurred when Armitage DCJ in the District Court re-sentenced the applicant for breach of a recognisance (a form of good behaviour bond) that had been imposed for an earlier offence of being an accessory after the fact to an armed robbery. The applicant had driven the getaway car in two armed robberies at the same grocery shop in 1997.
By the time Armitage DCJ imposed sentence for the breach, the applicant was already subject to substantial accumulated sentences totalling approximately four years and four months of imprisonment, with a likely period in custody of just over four years. The sentence imposed for the bond breach was 12 months, to commence on 31 March 2004, with a non-parole period (the minimum time before parole eligibility) of only nine months.
The applicant sought leave to appeal, contending that the non-parole period was demonstrably inadequate when viewed against the total period of imprisonment across all matters.
Legal Issues
- Whether Armitage DCJ gave sufficient effect to the totality principle when fixing the non-parole period for the breach of recognisance, having regard to the full accumulation of sentences across all matters
- Whether a nine-month non-parole period within an overall custodial period of more than four years was demonstrably inadequate
Decision
Smart AJ, with whom Buddin J agreed, found that Armitage DCJ had not given adequate reasons for the approach taken to the non-parole period. When the sentences across all matters were tabulated, the applicant faced a total period in custody of approximately four years and one month. A non-parole period of only three months (the net effect of the nine-month period when considered against the overall sentence structure) within that total was found to be demonstrably inadequate.
The Court acknowledged that the applicant had already benefited from considerable leniency in the earlier proceedings, including concurrent sentences imposed by the Parole Board and by other judges. The breach of the bond was characterised as serious, as was the original offence for which the bond was given. However, the totality principle required that some further allowance be made for the accumulation of sentences, even if only a modest one.
The Court also noted the delay in calling up the applicant to be sentenced for the bond breach. No call-up occurred after the Campbelltown District Court proceedings in March 2000, and action was only taken following further convictions and sentences in August 2001. The Court treated this delay as a relevant factor, though it was not determinative.
The resolution was to vary the commencement date of the 12-month sentence, rather than reduce it. The sentence itself was maintained, but its start date was brought forward to 1 December 2003, which had the effect of extending the overall non-parole period and providing greater time on supervised parole at the conclusion of the total sentence.
Orders Made
- Leave to appeal against sentence granted
- Appeal against sentence allowed in part
- The 12-month sentence with a nine-month non-parole period for breach of the recognisance was dismissed as to its length, but the commencement date was varied to 1 December 2003, with the non-parole period running from that date and concluding on 31 August 2004, at which point the applicant was to be released on supervised parole
Key Takeaways
- The totality principle requires a sentencing court to consider the cumulative effect of all sentences when fixing a non-parole period, not merely the gravity of the individual offence for which it is sentencing.
- A non-parole period that appears reasonable in isolation may nonetheless be demonstrably inadequate when measured against the total period of custody an offender will serve across accumulated sentences.
- Where a sentencing judge fails to provide adequate reasons for the approach taken to accumulation of sentences, that gap in reasoning will be a point of vulnerability on appeal.
- Delay in calling up an offender for breach of a bond is a relevant sentencing consideration, though it does not automatically warrant a reduction in the sentence for the underlying offence.
- Varying the commencement date of a sentence is one available mechanism to give effect to the totality principle without necessarily reducing the sentence length for the offence in question.
Legislation and Cases Referenced
No specific legislation or cases were cited in the judgment text or metadata. The totality principle applied by the Court is a well-established common law sentencing principle.