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Court of Criminal Appeal 25 September 2003

REGINA v. PARKER

[2003] NSWCCA 270

Theft & property
LEAVE TO APPEAL AGAINST SENTENCE BREAK, ENTER AND STEAL LARCENY FORM 1 OFFENCE ACCUMULATION NON

Citation: Regina v Parker [2003] NSWCCA 270
Court: NSW Court of Criminal Appeal
Date: 25 September 2003
Judge(s): Beazley JA; Adams J; Miles AJ

Background

The appellant was a 33-year-old man with a lengthy criminal history who pleaded guilty in the District Court to 12 counts of break, enter and steal, three counts of taking and driving a conveyance without consent, and five counts of larceny. Eight further offences were taken into account on a Form 1. Critically, the offending occurred over a three-month period between January and March 2002, just two months after the appellant had been released on parole for earlier break-and-enter and stealing offences.

Coolahan DCJ sentenced the appellant to a total effective term of imprisonment with a non-parole period of four and a half years against an overall sentence of approximately five years and eleven months. The resulting ratio of the non-parole period to the total sentence was approximately 77%, rather than the statutory minimum ratio of 75%.

The sole issue on appeal was whether the sentencing judge erred by setting a non-parole period exceeding 75% of the total sentence, in circumstances where the appellant argued that special circumstances warranted a lower ratio.

  • Whether Coolahan DCJ erred by failing to find "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which would have permitted a non-parole period below three-quarters of the total sentence.
  • Whether the partial accumulation of sentences, and the fact that the new sentence followed closely upon a prior period of custody, constituted special circumstances justifying a reduction in the non-parole period ratio.
  • Whether the appellant's cooperation with police was a relevant indicator of rehabilitation prospects capable of supporting a finding of special circumstances.

Decision

Beazley JA (with Adams J and Miles AJ agreeing) refused leave to appeal, finding no error in the sentencing judge's approach to special circumstances.

The Court noted three difficulties with the argument advanced on appeal. First, the issue of accumulation as a basis for special circumstances had not been put to Coolahan DCJ at the original sentencing hearing. Second, the fact that the appellant was on parole at the time of the offences was treated by the sentencing judge as an aggravating factor, making it contradictory to then treat the same circumstance as a special circumstance warranting a lower non-parole ratio. Third, his Honour was not satisfied that there were real prospects of rehabilitation at the time of sentencing.

The Court acknowledged the established principle, drawn from R v Clissold and R v Attard, that total or partial accumulation of sentences is a recognised basis for a finding of special circumstances. However, the mere existence of accumulation does not automatically compel such a finding. The sentencing court retains a discretion, and no error was shown in how that discretion was exercised here.

The Court also considered the appellant's cooperation with police, which had been acknowledged and taken into account by the sentencing judge in the overall sentence imposed. That cooperation had not been raised at first instance or on appeal as a specific basis for special circumstances, and its consideration did not disclose any error.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the non-parole period must not be less than three-quarters of the total sentence unless special circumstances exist. Nothing in the provision prohibits a non-parole period greater than 75%.
  • Partial or total accumulation of sentences is a well-recognised basis for a finding of special circumstances, as confirmed in R v Clissold and R v Attard, but it does not automatically require such a finding in every case.
  • Where a fact (such as offending while on parole) is treated as aggravation, it would be contradictory to simultaneously rely on that same fact as a special circumstance warranting a reduced non-parole period.
  • No error was established in the sentencing judge's refusal to find special circumstances, given the appellant's criminal history, offending while on parole, and the sentencing judge's assessment of rehabilitation prospects.
  • Arguments not raised before the sentencing court face significant obstacles on appeal: the Court of Criminal Appeal noted that both the accumulation point and the rehabilitation/cooperation point had not been squarely put to Coolahan DCJ at first instance.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Crimes Act 1900 (NSW), ss 112, 154A(1), 117

Cases:
- R v Clissold [2002] NSWCCA 356
- R v Attard [2002] NSWCCA 229
- R v Gower (1991) 56 A Crim R 115
- R v Simpson (2001) 53 NSWLR 704