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Court of Criminal Appeal 16 December 2003

R v STRAHAN

[2003] NSWCCA 397

HomicidePublic order & justice offences

Citation: R v Strahan [2003] NSWCCA 397
Court: NSW Court of Criminal Appeal
Date: 16 December 2003
Judges: Hodgson JA, Hulme J, Hidden J

Background

The appellant pleaded guilty to being an accessory after the fact to manslaughter. The offence arose when he drove another person to a location knowing that person intended to assault the deceased. Following the fatal beating, the appellant helped conceal the death by wrapping the body, transporting it to bushland, and later burning a chair and clothing that bore the deceased's blood. The killing went undetected for six months.

At first instance, Barr J sentenced the appellant to three years' imprisonment to be served by way of periodic detention, with no non-parole period set and no stated reasons for that omission. The maximum penalty for the offence was five years' imprisonment.

After the sentence was imposed, the appellant experienced significant practical difficulties attending periodic detention at Unanderra from his home in the Batemans Bay area. The Parole Board revoked the periodic detention order on three occasions, and the appellant ultimately served periods of full-time custody as a result of absences without leave.

  • Whether Barr J erred by failing to provide reasons for not setting a non-parole period, in breach of s 45(2) of the Crimes (Sentencing Procedure) Act 1999
  • Whether Barr J erred by failing to apply the required two-stage sentencing process under s 5(1) of the Periodic Detention of Prisoners Act 1981, which required a term of imprisonment to be fixed before the method of service was considered
  • Whether, under s 6(3) of the Criminal Appeal Act, a different sentence was warranted in law and should have been imposed

Decision

The Court of Criminal Appeal found two distinct errors in the original sentencing. First, Barr J did not give reasons for declining to set a non-parole period, in breach of the statutory obligation under s 45(2) of the Crimes (Sentencing Procedure) Act 1999. Second, the limited terms in which his Honour expressed himself made it clear he had not followed the two-stage process required by s 5(1) of the Periodic Detention of Prisoners Act 1981, that is, fixing the term of imprisonment as a discrete step before turning to whether periodic detention was appropriate.

The Court considered whether s 6(3) of the Criminal Appeal Act was satisfied, requiring that a different sentence be warranted in law before any intervention. It reasoned that if the proper process had been followed and a parole period of roughly one-third had been added to the three-year custodial term, the resulting sentence of approximately four years would have been excessive given the five-year statutory maximum. This meant the original three-year custodial term was itself excessive and a lesser period was required.

In re-sentencing, the Court acknowledged the difficulty of translating periodic detention periods into full-time custody equivalents. It took into account the 84 periods of periodic detention served and approximately eleven months of full-time custody. The Court confirmed the offence was serious, given the community's legitimate interest in violent deaths coming promptly to police attention, and imposed a sentence of three years with a non-parole period of two years and three months.

Orders Made

  1. Time within which to appeal extended.
  2. Leave to appeal granted.
  3. Appeal allowed.
  4. Sentence imposed by Barr J quashed.
  5. Appellant sentenced to imprisonment for three years commencing 10 June 2001 and concluding 9 June 2004.
  6. Non-parole period of two years and three months fixed, commencing 10 June 2001 and concluding 9 September 2003, on which date the appellant was to be released on parole.

Key Takeaways

  • Under s 5(1) of the Periodic Detention of Prisoners Act 1981, a sentencing court must fix the term of imprisonment as a separate and prior step before determining whether that term should be served by way of periodic detention. Failure to follow this two-stage process constitutes a sentencing error.
  • A failure to provide reasons for not setting a non-parole period breaches s 45(2) of the Crimes (Sentencing Procedure) Act 1999 and is itself a distinct ground of error.
  • Where errors in the sentencing process are established, the Court of Criminal Appeal will not automatically re-sentence. Section 6(3) of the Criminal Appeal Act requires the court to be satisfied that a different sentence was warranted in law before it intervenes.
  • In dismissing any possibility that the original three-year term could stand, the Court reasoned that attaching a standard parole period to that term would have produced a total sentence excessive relative to the statutory maximum, confirming the custodial term was inflated by the flawed process.
  • Where an offender has served a mixture of periodic detention and full-time custody prior to re-sentencing, the Court will take both into account when fixing a revised sentence, even if precise equivalence between the two modes of custody cannot be calculated.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45(2)
- Periodic Detention of Prisoners Act 1981 (NSW), s 5(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Regina v Schodde [2003] NSWCCA 164
- Regina v Simpson (2001) 53 NSWLR 704