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Court of Criminal Appeal 18 December 2003

R v Ferrada

[2003] NSWCCA 387

Other
CRIMINAL LAW SENTENCING TOTALITY

Citation: R v Ferrada [2003] NSWCCA 387
Court: NSW Court of Criminal Appeal
Date: 18 December 2003
Judge(s): Barr J; Kirby J

Background

The applicant pleaded guilty in the Local Court to three offences committed in 2002: breaking and entering a produce store in South Grafton, robbing a credit union in Coffs Harbour of approximately $4,050, and robbing a second credit union in Coffs Harbour of more than $39,000 while armed with a kitchen knife. The latter two offences were committed while the applicant was on bail for the first. The sentencing judge in the District Court also took into account two further matters under s 32 of the Crimes (Sentencing Procedure) Act: the malicious destruction of a motor vehicle by fire and obtaining meals and drinks by false representation.

Solomon DCJ sentenced the applicant to concurrent terms of four years (fixed), six years (fixed), and eleven years with a seven-year non-parole period, producing a total effective sentence of eleven years with a seven-year non-parole period. The applicant sought leave to appeal, contending the total effective sentence was manifestly excessive.

The applicant had a substantial criminal history, including prior convictions in Western Australia and Queensland for armed robbery and related serious offences, and had been in custody for much of the period between 1993 and 2000. He was a long-term heroin addict at the time of the offences.

  • Whether the individual sentence imposed on the third count (armed robbery) was disproportionately high relative to the objective seriousness of that offence, placing it too close to the top of the available range
  • Whether the sentencing judge correctly applied the totality principle when fashioning concurrent sentences for multiple offences
  • Whether the overall effective sentence of eleven years with a seven-year non-parole period fell outside the range of the sentencing judge's proper discretion

Decision

Barr J acknowledged there may have been substance in the submission that the sentence on the third count was set too high in isolation, noting that the armed robbery, while serious, did not obviously warrant a sentence approaching the top of the twenty-five year maximum. Under the approach confirmed in Pearce v The Queen, a sentencing judge is required first to set an appropriate individual sentence for each count, and only then to address totality through the degree of concurrency or accumulation applied.

However, Barr J framed the practical question as whether, irrespective of any error in the individual sentence for the third count, the total effective sentence appropriately reflected the totality of the applicant's criminality. Even if error existed on the third count, any reduction to that sentence would likely have required the previously concurrent sentences to be made partly cumulative in order to preserve the overall sentence's reflection of total criminality. In other words, the analysis could not stop at one count in isolation.

Taking into account the applicant's long and serious criminal history, his continued heroin addiction, the commission of offences on bail, and the need for both personal and general deterrence, Barr J concluded the total effective sentence was within the range of the sentencing judge's proper discretion. The drug-motivated nature of the offending was not treated as a mitigating factor, nor was the claimed pressure from third parties. Kirby J agreed with Barr J's reasons without adding further comment.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the totality principle operates after individual sentences are set: a judge must first impose a sentence appropriate to each count individually, then adjust for totality through concurrency or accumulation, consistent with Pearce v The Queen.
  • In assessing a challenge to a total effective sentence, the Court applied a practical test: even if an individual sentence might have been too high, reducing it could necessitate partly cumulative terms to maintain the appropriate overall sentence, meaning the overall outcome may nonetheless stand.
  • Committing offences while on bail was treated as a seriously aggravating feature, as was an extensive prior history of like offending in multiple jurisdictions.
  • A drug habit motivating offending does not constitute a mitigating factor, nor does claimed pressure from third parties to whom debts were owed.
  • Statistical sentencing data published by the Judicial Commission carries limited weight where the statistics cannot reveal the criminal histories of offenders, whether offences were committed on bail, or whether multiple offences were involved.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), s 32

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v PPB [1999] NSWCCA 360