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Court of Criminal Appeal 1 December 2003

R v Stephen

[2003] NSWCCA 377

Fraud & dishonestyTheft & property
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE PLEA OF GUILTY TO RECEIVING PAROLE PERIOD.

Citation: R v Stephen [2003] NSWCCA 377
Court: NSW Court of Criminal Appeal
Date: 1 December 2003
Judge(s): Wood CJ at CL; Smart AJ

Background

The applicant pleaded guilty to receiving 11 stolen laptop and desktop computers between August and September 2001, selling them to a co-offender who on-sold them further. A separate possession of cannabis offence was taken into account on a Form 1 (a procedure under which an offender formally acknowledges additional charges so they can be considered in sentencing without separate convictions being recorded). The applicant had prior convictions for dishonesty offences and was subject to a bond for larceny at the time of the offending.

The District Court sentenced the applicant to a fixed term of three years periodic detention with no non-parole period. The sentencing judge (Blanch CJ DC) aligned the sentence with that imposed on a co-offender, Karnib, who had also received a fixed term with no non-parole period. The judge expressed a preference for some period of post-release supervision but concluded that fixing a non-parole period was not available without departing from parity with Karnib's sentence.

The applicant appealed on the ground that the sentencing judge erred by failing to set a non-parole period, arguing that the omission was not justified in the circumstances.

  • Whether the sentencing judge erred in imposing a fixed term of imprisonment without specifying a non-parole period
  • Whether the parity principle, applied by reference to the sentences of co-offenders Karnib and Senior, justified the omission of a non-parole period
  • Whether special circumstances existed that would warrant a non-parole period shorter than 75 per cent of the head sentence

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in principle. Under sections 44 and 45 of the Crimes (Sentencing Procedure) Act 1999 (as they stood at the relevant time), a court imposing a sentence of imprisonment was required to set a non-parole period unless specific statutory exceptions applied or the court found special circumstances justifying departure. The sentencing judge had not engaged with these provisions expressly, and the reasoning that parity with Karnib's sentence precluded a non-parole period was flawed.

The Court reasoned that a proper application of the parity principle did not require the applicant to be denied the benefit of release on parole simply because co-offenders had received fixed terms. The co-offenders' sentences were themselves potentially open to question on parity grounds. Setting a non-parole period for the applicant would not produce any legitimate sense of grievance in Karnib or Senior, given the relative seriousness of their respective roles.

The Court upheld the head sentence of three years periodic detention as appropriate, taking into account the calculated nature of the offending, the applicant's prior dishonesty record, and the fact that he reoffended while on a bond. The applicant's guilty plea, remorse, and rehabilitative progress warranted the setting of a non-parole period equivalent to 75 per cent of the head sentence. The Court found no special circumstances to justify a greater departure from that ratio.

Orders Made

  • Leave to appeal granted
  • Appeal allowed and the District Court sentence quashed
  • The applicant sentenced to three years imprisonment by way of periodic detention, commencing 18 February 2003 and expiring 17 February 2006
  • Non-parole period of two years and three months set, commencing 18 February 2003 and expiring 17 May 2005, with a direction for release on parole at its expiration
  • The applicant to continue reporting for periodic detention as presently required, after completing current sentences requiring full-time custody until 20 January 2004

Key Takeaways

  • Parity with a co-offender's fixed-term sentence does not, of itself, justify omitting a non-parole period where the sentencing framework otherwise requires one to be set; the failure to engage with sections 44 and 45 of the Crimes (Sentencing Procedure) Act 1999 constituted an error in principle.
  • A sentencing court's expressed preference for post-release supervision, combined with the statutory presumption favouring a non-parole period, pointed toward setting one rather than treating parity as an absolute bar.
  • Where co-offenders' own sentences may themselves be questionable on parity grounds, those sentences provide a weaker anchor for denying a benefit to the offender under appeal.
  • The default ratio of a non-parole period at 75 per cent of the head sentence applied in the absence of established special circumstances, confirming that special circumstances must be positively demonstrated rather than assumed.
  • Positive rehabilitative steps taken by an offender after the original offending, including establishing stable relationships and progressing on a treatment program, were relevant to the setting of a non-parole period even where they did not alter the head sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 45
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- R v Hanslow [2002] NSWCCA 161
- R v Eagleton [2003] NSWCCA 40
- R v Karnib [2003] NSWCCA 271
- R v Parsons and Poore [2002] NSWCCA 296
- R v Schodle [2003] NSWCCA 164
- R v Wegener [1999] NSWCCA 405