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Court of Criminal Appeal 8 May 2003

R v IRVING

[2003] NSWCCA 127

Assault & violenceTheft & property

Citation: R v Irving [2003] NSWCCA 127
Court: NSW Court of Criminal Appeal
Date: 8 May 2003
Judge(s): Levine J, Simpson J

Background

The applicant pleaded guilty in the Penrith District Court to two offences: assault occasioning actual bodily harm and break, enter and steal. The victim was a 90-year-old resident of an aged care facility. The applicant broke into the victim's suite, stole from him, and assaulted him with a chair after the victim attempted to shut the door.

On 2 August 2002, Judge Bellear sentenced the applicant to a fixed term of two years for the assault and four and a half years (with a three-year non-parole period) for the break, enter and steal. Both sentences were to be served concurrently with each other and partly concurrent and partly consecutive to a sentence the applicant was already serving.

The applicant sought leave to appeal to the Court of Criminal Appeal on the ground that the sentences were excessive, raising two specific errors in the sentencing process.

  • Whether the sentencing judge erred by failing to account for seven days of pre-sentence custody solely referable to the offences in question.
  • Whether the sentencing judge erred by failing to give practical effect to a finding of special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999, which is designed to produce a non-parole period of less than 75 per cent of the total head sentence.

Decision

On the pre-sentence custody error: The Crown did not dispute that the sentencing judge had omitted seven days of pre-sentence custody (6 to 13 October 2000) from his calculations. The Court accepted this concession, and the omission was sufficient to trigger the Court's intervention and justify resetting the commencement date of both sentences to 26 July 2002 to reflect the correct credit.

On the special circumstances ground: The applicant argued that when the effective total sentence (including time already being served from 30 April 2001) was considered as a whole, the non-parole period represented approximately 74 per cent of the total effective sentence. This, the applicant contended, meant the judge's stated intention to apply special circumstances had not been achieved in practice.

Levine J examined the antecedents carefully and found that the 30 April 2001 starting date related to a separate, short sentence for goods in custody that had long expired before the sentencing date. The only other relevant sentence was one imposed in the Blacktown Local Court, and viewed against that sentence, the extent to which the special circumstances intention was not fully realised amounted to, at most, five weeks. The Court found no meaningful error: the sentencing judge had regard to the totality principle, made the sentences partially concurrent, and had not improperly ignored the existing sentence.

On the overall question of severity: The Court noted that the objective seriousness of the offences, which involved a highly vulnerable 90-year-old victim, far outweighed the subjective considerations the judge had acknowledged. Even accepting that the Court's intervention was technically triggered by the pre-sentence custody error, section 6(3) of the Criminal Appeal Act 1912 applied. That provision allows an appellate court to decline to reduce a sentence where no less severe penalty is warranted in law, and the Court concluded that was the situation here. The sentences were adjusted only to correct the commencement date.

Orders Made

  • Leave to appeal granted.
  • Sentences imposed on 2 August 2002 set aside and replaced as follows:
  • Count one: fixed term of two years commencing 26 July 2002, expiring 25 July 2004.
  • Count two: four and a half years commencing 26 July 2002, expiring 25 January 2007; non-parole period of three years commencing 26 July 2002, expiring 25 July 2005.

Key Takeaways

  • An uncontested failure to credit pre-sentence custody is sufficient to trigger appellate intervention in sentencing, even where the Court ultimately makes only a modest adjustment to the commencement date.
  • Under section 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal may decline to reduce a sentence where the intervention is technically triggered by error but no less severe sentence is warranted in law, effectively preserving the original outcome in substance.
  • A sentencing judge's finding of special circumstances does not automatically produce a mathematically precise ratio of non-parole to head sentence across all concurrent and consecutive terms; small discrepancies arising from cumulation will not necessarily constitute appellate error.
  • Where a sentencing judge clearly engages with the totality principle and structures sentences accordingly, an appellate court will not readily infer that the judge overlooked the existence of sentences already being served.
  • The objective gravity of offences against highly vulnerable victims, such as elderly residents of aged care facilities, was treated as a weighty factor that could outweigh subjective mitigating circumstances in the sentencing calculus.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59 and 112(1) (assault occasioning actual bodily harm; break, enter and steal)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (special circumstances and the non-parole period ratio)
- Criminal Appeal Act 1912 (NSW), s 6(3) (court's power to decline to reduce a sentence where none less severe is warranted)

Cases:
- R v Thornbury [2000] NSWCCA 526