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Court of Criminal Appeal 19 December 2002

R v Quinn

[2002] NSWCCA 508

Fraud & dishonestyTheft & property
CRIMINAL LAW SENTENCING NO QUESTION OF PRINCIPLE

Citation: R v Quinn [2002] NSWCCA 508
Court: NSW Court of Criminal Appeal
Date: 19 December 2002
Judge(s): Sperling J, Buddin J

Background

The applicant, a 50-year-old man with an extensive criminal history, pleaded guilty in New South Wales to a large number of property and dishonesty offences, including break, enter and steal, larceny, obtaining money by deception, and making and using false instruments. The offences were committed between April 1997 and February 1999, and involved a total sum exceeding $300,000. His method was to target elderly people by posing as a bank official or breaking into their homes, then stealing or fraudulently accessing their bank accounts.

Prior to sentencing on the NSW offences, the applicant had already been sentenced in Queensland in November 2000 for 24 similar offences involving approximately $100,000. The Queensland sentence was an effective term of six years with a non-parole period of two years, commencing 1 July 1999.

The NSW District Court judge, Gibson DCJ, sentenced the applicant by first assessing the appropriate penalty for the total criminality across both jurisdictions, then applied discounts for guilty pleas and assistance given to NSW authorities. The resulting sentences produced an overall effective non-parole period of five years against an overall effective head sentence of six years. The applicant sought leave to appeal on the ground that the sentence was excessive.

  • Whether the overall effective non-parole period of five years was disproportionate to the overall effective head sentence of six years
  • Whether the principles from Pearce (1998) 194 CLR 610, governing the accumulation of sentences, could be applied where offences had been sentenced across two different state jurisdictions with different sentencing regimes
  • Whether assistance given to interstate authorities (Queensland) could be taken into account as a mitigating factor when sentencing in New South Wales

Decision

The Court of Criminal Appeal found that the overall effective head sentence of six years could not be reduced, given the seriousness and volume of offending across both jurisdictions and the discounts already applied for guilty pleas and assistance to NSW authorities. There was no proper basis for disturbing that figure.

The court identified a significant problem, however, with the non-parole period. An overall effective non-parole period of five years against a head sentence of six years departed substantially from the conventional proportional relationship between those two figures, and no reason appeared from the sentencing exercise to justify that departure. Sperling J treated this disproportion as an error warranting correction.

The court determined that an overall effective non-parole period of four years was appropriate, taking into account that the applicant was serving his sentence under protection, which constituted special circumstances. That figure was also assessed as the minimum available in the proper exercise of the court's discretion, given the objective seriousness of the total offending.

Two broader questions, namely how the Pearce principles apply where sentences have been imposed across different state jurisdictions with different regimes, and whether a discount can be given for assistance to interstate authorities, were deliberately left unresolved. Neither question needed to be decided to dispose of the appeal on the non-parole period issue.

Orders Made

  • Leave to appeal against severity of sentence granted
  • Appeal allowed
  • Sentence imposed for Count 7 set aside
  • Applicant resentenced on Count 7 to imprisonment for three years commencing 1 July 2002, with a non-parole period of one year expiring 30 June 2003, on which date the applicant was to be released from custody

Key Takeaways

  • An overall effective non-parole period that is substantially disproportionate to the overall effective head sentence requires justification; where none exists, it constitutes an error warranting appellate intervention.
  • The Court of Criminal Appeal confirmed that the appropriate relationship between a head sentence and a non-parole period is a matter of established convention, and departures from that relationship call for identifiable reasons.
  • Where a sentencing court accounts for criminality across two jurisdictions by constructing a notional overall sentence and then working back, the integrity of the resulting non-parole period must still reflect that overall structure.
  • The Court expressly left open the question of whether assistance given to authorities in another Australian state may be taken into account as a mitigating factor in NSW sentencing proceedings.
  • Applying the Pearce principles to cases involving prior sentences imposed under a different state's sentencing regime was described by Sperling J as "difficult to say the least," though the question was not resolved.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112, 117, 178BA, 300

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Hammoud (2000) 118 A Crim R 66