Citation: Regina v Lyndon [2003] NSWCCA 152
Court: New South Wales Court of Criminal Appeal
Date: 30 May 2003
Judge(s): James J; Smart AJ
Background
The applicant pleaded guilty in the District Court to attempted armed robbery with an offensive weapon. At approximately 3am, he entered a service station, produced what was later accepted to be a toy pistol, pointed it at the female console operator, and demanded cash from the till. He left without taking any money after a customer drove into the forecourt. He was identified from security footage and initially denied involvement before ultimately entering his plea of guilty at the first available opportunity.
At the time of sentencing, the applicant was already serving a nine-month non-parole period for unrelated driving offences. The District Court imposed a sentence of five years imprisonment with a non-parole period of three years and nine months for the robbery offence, ordered to run cumulatively. The judge found no special circumstances warranting a departure from the standard three-to-one ratio between head sentence and non-parole period.
The applicant sought leave to appeal on the ground that the sentence was too severe, arguing that the cumulation of sentences was itself a special circumstance that should have resulted in a reduced non-parole period. He also pointed to his significant personal circumstances, including a troubled upbringing, longstanding heroin addiction, and the breakdown of his marriage.
Legal Issues
- Whether the cumulation of sentences constituted a special circumstance requiring the sentencing court to reduce the non-parole period below the standard ratio
- Whether the total effective period in custody, produced by the combined sentences, was disproportionate
- Whether the sentencing judge erred by failing to address the question of cumulation in fixing the non-parole period
Decision
The Court of Criminal Appeal accepted that the accumulation of sentences was a factor that should have been addressed when fixing the non-parole period. The sentencing judge had not turned his mind to this question, and neither the defence nor the prosecution had raised it during the sentencing hearing. Smart AJ noted that the need for intensive post-release supervision and rehabilitation, which the psychological evidence clearly supported, had also not been put to the judge.
When the Court recalculated the appropriate non-parole period on a totality basis, accounting for the nine-month non-parole period already being served, the necessary adjustment to the non-parole period for the robbery offence was modest: approximately two and a quarter months. Smart AJ concluded that the overall result produced at first instance was not grossly disproportionate, but that some adjustment was nonetheless warranted.
The Court upheld the five-year head sentence in full. It quashed the non-parole period of three years and nine months and substituted a non-parole period of three years and six months. The Court noted that the extended parole period resulting from this adjustment would benefit the applicant, given the level of supervision and rehabilitation support he was likely to need upon release.
Orders Made
- Leave to appeal against sentence granted
- Appeal allowed in part
- Appeal against the five-year sentence of imprisonment commencing 15 November 2002 dismissed
- Non-parole period of three years and nine months quashed; non-parole period of three years and six months substituted, expiring 14 May 2006, on which date the applicant would be eligible for release on supervised parole
Key Takeaways
- Cumulation of sentences is a relevant consideration when fixing a non-parole period, and a sentencing court should address it expressly in remarks on sentence.
- Where sentences are to be served cumulatively, the totality principle requires the court to assess whether the combined custodial period, and particularly the overall non-parole period, is proportionate to the total criminality involved.
- In applying totality, the required adjustment to an individual non-parole period may be modest: the Court of Criminal Appeal found that correcting for the failure to account for cumulation warranted a reduction of only approximately two and a quarter months.
- The absence of submissions on a relevant sentencing factor does not preclude an appellate court from correcting the error, though here the Court noted that neither party had drawn the issue to the sentencing judge's attention.
- A longer parole period, resulting from a reduced non-parole period, can serve the rehabilitative purposes of sentencing where post-release supervision is clearly indicated by the evidence.
Legislation and Cases Referenced
Legislation:
- Sentencing Act 1989 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Henry (1999) 46 NSWLR 346
- Clarke (1995) 78 ACR 226
- Simpson, NSWCCA, 18 June 1992