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Court of Criminal Appeal 3 May 2004

Regina v Hakim

[2004] NSWCCA 124

Theft & propertyPublic order & justice offences
CRIMINAL PRACTICE & PROCEDURE YOUTH 18 YEARS NO CONVICTIONS NEED FOR NON PAROLE PERIOD.

Citation: Regina v Hakim [2004] NSWCCA 124
Court: NSW Court of Criminal Appeal
Date: 3 May 2004
Judge(s): Hidden J; Kirby J

Background

The applicant, an 18-year-old with no prior criminal history, pleaded guilty to being an accessory before the fact to break, enter and steal under the Crimes Act 1900. His role was to lend his van to his cousin and an associate who broke into an industrial premises at Seven Hills overnight, stealing air conditioners and electrical goods valued at over $70,000. The applicant was found nearby at 3 am and made admissions to police, though he disputed being a formal "lookout."

The District Court sentenced the applicant to two years imprisonment to be served by way of periodic detention, commencing 3 May 2003. Notably, the sentencing judge did not fix a non-parole period alongside that sentence.

The applicant sought leave to appeal, arguing principally that the absence of a non-parole period was an error. His subjective case was strong: he had an exemplary background, was actively involved in his church, was in full-time employment with a supportive employer, and was assessed by the Probation and Parole Service as suitable for a non-custodial order.

  • Whether a sentence of two years periodic detention was excessive in all the circumstances, given the applicant's youth, clean record, and strong subjective features
  • Whether the sentencing judge erred by failing to fix a non-parole period alongside the periodic detention sentence
  • Whether "special circumstances" existed justifying a non-parole period shorter than the statutory default ratio

Decision

The Court acknowledged this was an unusual case. Hidden J observed that a non-custodial penalty would not have been inappropriate, though he was not prepared to find that periodic detention fell outside the legitimate range of sentencing discretion. Both judges accepted the sentence itself could stand.

The primary issue was the failure to fix a non-parole period. Kirby J held that the sentencing judge should have fixed one, and that special circumstances existed in this case justifying a departure from the standard ratio between the non-parole period and the total sentence.

Kirby J drew on the applicant's youth, his prospects for rehabilitation, and the fact that this was his first period of custody. Citing the reasoning in cases such as R v Cromarty and R v Stephen, His Honour reasoned that an extended parole period for a young first offender serves a continuing purpose, including as a constraint against reoffending through the risk of parole revocation.

The Court fixed a non-parole period of 15 months, running from 3 May 2003 to 2 August 2004, within the existing two-year term.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed against the sentence imposed by Freeman DCJ to the extent that the two-year periodic detention sentence was varied by adding a non-parole period of 15 months, beginning 3 May 2003 and ending 2 August 2004.

Key Takeaways

  • A sentence of periodic detention carries an obligation to consider fixing a non-parole period; the failure to do so in this case was a reviewable error.
  • Special circumstances justifying a shorter non-parole period can arise from the combination of an offender's youth, first-time custody status, and demonstrated rehabilitation prospects, even where supervision on parole is not contemplated.
  • Hidden J's observation that a non-custodial penalty "would not have been inappropriate" illustrates that strong subjective features, including a clean record, church involvement, and employer support, carry significant weight, though they do not automatically preclude a custodial term.
  • The Court of Criminal Appeal confirmed that an extended parole period for a young offender retains utility even in its later stages, as the ongoing risk of revocation for reoffending operates as a meaningful constraint.
  • In assessing the applicant's role, the District Court found he was a "willing facilitator" in lending transport, but was no more central to the operation than that; the Court of Criminal Appeal's reasoning reflects that a peripheral role in a serious offence still attracts a custodial response at the lower end of the range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(1), 346
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12

Cases Cited:
- R v Zamagias [2002] NSWCCA 17
- R v Cromarty [2004] NSWCCA 54
- R v Parsons & Poore [2002] NSWCCA 296
- R v Meyer (2002) 135 A Crim R 438
- R v Stephen [2003] NSWCCA 377
- R v Hoang [2003] NSWCCA 380
- R v Fong [2002] NSWCCA 320