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Court of Criminal Appeal 1 December 2003

R v Henare

[2003] NSWCCA 376

DrugsTheft & propertyTraffic & driving
NON PAROLE PERIOD SHOULD HAVE BEEN FIXED

Citation: R v Henare [2003] NSWCCA 376
Court: New South Wales Court of Criminal Appeal
Date: 1 December 2003
Judge(s): Smart AJ

Background

The appellant was sentenced by the Drug Court, presided over by Milson DCJ, in respect of 11 offences spanning 2000 to 2002. The offences included multiple counts of break, enter and steal, drive whilst disqualified, larceny of a motor vehicle, and being carried in a conveyance. The appellant initially had his sentences suspended to allow participation in a Drug Court rehabilitation program.

The Drug Court program did not proceed as intended. The appellant left Odyssey House without completing the program, was apprehended in August 2002, briefly re-entered the program at The Glen, and then left that facility in October 2002, resulting in termination of the Drug Court program altogether. The Drug Court re-sentenced him in February 2003.

The appellant sought leave to appeal against two specific sentences from the re-sentencing: an 18-month fixed term for break and enter with intent to steal, and an 18-month fixed term for drive whilst disqualified. Both sentences were imposed without any non-parole period.

  • Whether the sentencing judge erred by imposing fixed-term sentences of 18 months for the two offences without fixing a non-parole period
  • Whether, in the absence of a non-parole period, a fixed term should have been set at a figure closer to what a non-parole period would have been, rather than the full head sentence equivalent
  • Whether the consequential adjustment of the remaining sentences was required following any variation to the first group of sentences

Decision

The Court of Criminal Appeal found error in both sentences. Smart AJ held that an 18-month fixed term operated in effect as a head sentence, and that the normal sentencing procedure required either the fixing of a non-parole period or, alternatively, the imposition of a fixed term closer in length to what the non-parole period would have been. Neither approach had been followed.

In relation to the break and enter with intent to steal (matter 2), the Court noted that the sentencing judge had appropriately reduced the starting point of two years to account for pre-sentence custody and time spent in rehabilitation centres. However, the failure to set a non-parole period at any stage of the sentencing process was an error that required correction.

The same reasoning applied to the drive whilst disqualified offence (matter 3). Despite acknowledging the appellant's poor driving history and repeated disqualified driving offences, the Court was satisfied that the 18-month term with no non-parole period did not conform to the standard sentencing structure. A non-parole period was required.

Both appeals were allowed. The Court substituted sentences of 18 months imprisonment with a non-parole period of 13 months and 2 weeks for each offence, commencing on 7 December 2002. A consequential adjustment was then made to the commencement dates of the remaining sentences (matters 5 to 11) under the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • Leave to appeal granted for matters 2 and 3
  • Appeals against sentence allowed; original sentences quashed for both matters
  • Substituted sentence for each offence: 18 months imprisonment with a non-parole period of 13 months and 2 weeks, commencing 7 December 2002, with the non-parole period expiring 20 January 2004
  • Sentences for matters 5 to 11 adjusted consequentially to commence on 21 January 2024, with non-parole periods expiring 20 July 2005
  • Sentences for matters 1 and 4 (12 months fixed term each, commencing 7 December 2002) remained undisturbed

Key Takeaways

  • Where an 18-month term of imprisonment is imposed, that length operates in effect as a head sentence, and the standard sentencing process requires the fixing of a non-parole period rather than leaving the sentence as a fixed term.
  • A sentencing court that omits a non-parole period must, at minimum, set a fixed term that reflects what the non-parole period would have been, rather than imposing the full head sentence equivalent as a fixed term.
  • The Court of Criminal Appeal confirmed that time spent in a residential rehabilitation centre does not equate to full-time custody, but an allowance must nonetheless be made for the restrictions imposed by such facilities when calculating the appropriate sentence.
  • Under s 59 of the Crimes (Sentencing Procedure) Act 1999, varying sentences in an earlier group triggers a consequential obligation to adjust the commencement dates of sentences in a subsequent cumulative group.
  • In dismissing the challenge to the second batch of sentences but correcting the first, the Court confirmed that special circumstances already reflected in one group of sentences need not be re-applied to adjust sentences in that same group a second time.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59

Cases:
- No cases were cited in the judgment.