Citation: Tuncbilek v R [2004] NSWCCA 139
Court: NSW Court of Criminal Appeal
Date: 11 May 2004
Judge(s): Spigelman CJ; Wood CJ at CL; Simpson J
Background
The applicant pleaded guilty in the District Court to two serious offences: assault with intent to rob while armed with an offensive weapon (arising from an incident in Ultimo in the early hours of 4 February 2003, in which he produced a pistol and threatened a male pedestrian); and aggravated car-jacking committed in company (arising from an incident in Five Dock on 19 February 2003, in which he and a co-offender physically removed a 54-year-old woman from her vehicle). Both offences were committed while the applicant was on parole for armed robbery.
At sentence, Berman DCJ imposed a fixed term of seven years on the first count and a seven-year sentence with a four-and-a-half-year non-parole period on the second, partially concurrent with the first. The combined effective sentence was ten years' imprisonment with a non-parole period of seven and a half years.
The applicant sought leave to appeal on the ground that the sentences were manifestly excessive, raising issues about the proportionality of non-parole periods, special circumstances, and parity with the sentence imposed on his co-offender in the car-jacking.
Legal Issues
- Whether the sentencing judge erred in imposing a fixed term on Count 1 rather than a sentence with a non-parole period, given the standard non-parole period provisions under the Crimes (Sentencing Procedure) Act 1999
- Whether special circumstances existed to justify a departure from the standard ratio between non-parole period and total sentence
- How the standard non-parole period regime interacted with a plea of guilty discount
- Whether the sentences gave rise to a parity concern when compared with the sentence imposed on the co-offender
- Whether the overall effective sentence properly reflected the principle of totality
Decision
Simpson J (with whom Spigelman CJ and Wood CJ at CL agreed) allowed the appeal and quashed both sentences. The central difficulty with the original sentencing was the imposition of a fixed term on Count 1. Under the standard non-parole period provisions, the applicable offence required the court to set a non-parole period anchored to the statutory standard, adjusted for relevant factors including the plea of guilty. A fixed term did not permit that analysis and was incompatible with the regime.
On Count 1, Simpson J assessed the appropriate sentence having regard to the standard non-parole period of seven years for the offence, reduced by 25% to reflect the plea of guilty. Special circumstances were found to exist, given the applicant's significant rehabilitation needs arising from his intellectual disability, attention deficit disorder, lengthy history of substance abuse, and years spent in custody from a young age. These circumstances warranted a longer-than-standard balance of term to allow for adequate supervision on parole.
On Count 2, the court applied the standard non-parole period of five years for aggravated car-jacking. The factors for and against departure from that standard were considered to be evenly balanced, and the standard period was therefore not departed from. After applying the plea of guilty discount of 25%, the resulting non-parole period was further reduced to give effect to the finding of special circumstances and to accommodate the principle of totality, given that the sentence was structured to be partially concurrent and partially cumulative with Count 1.
The restructured sentences produced a more proportionate relationship between the non-parole periods and the balance of terms, and an overall effective sentence that better reflected the rehabilitative purposes of the sentencing regime.
Orders Made
- Leave to appeal granted
- Appeal allowed; original sentences quashed
- In lieu of those sentences, the applicant was re-sentenced as follows:
- Count 1: Non-parole period of 3 years and 6 months, commencing 3 March 2003 and expiring 2 September 2006; balance of term of 1 year and 10 months, expiring 2 July 2008
- Count 2: Non-parole period of 3 years, commencing 3 March 2005 and expiring 2 March 2008; balance of term of 2 years, expiring 2 March 2010
Key Takeaways
- A fixed-term sentence is incompatible with the standard non-parole period regime under the Crimes (Sentencing Procedure) Act 1999 where that regime applies to the offence in question; the sentencing court is required to set a non-parole period assessed by reference to the statutory standard.
- Under the standard non-parole period provisions, a plea of guilty discount applies to reduce the standard period before the balance of term is calculated, and that reduction must be expressly worked through in the sentencing exercise.
- Special circumstances can justify departing from the standard ratio between a non-parole period and total sentence, particularly where the offender has significant rehabilitation needs, cognitive impairment, or a lengthy history of institutionalisation that makes extended post-release supervision appropriate.
- The Court of Criminal Appeal confirmed that parity with a co-offender's sentence is a permissible consideration under s 21A(1) of the Crimes (Sentencing Procedure) Act 1999, as confirmed in R v Way [2004] NSWCCA 131.
- Where partial accumulation of sentences is necessary, the principle of totality may require the non-parole period on a later count to appear nominally low when viewed in isolation; The Queen v Johnson [2004] HCA 15 was cited as authority for that approach.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 97, 154C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(2), 54A(2), 54B, 101A
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
Cases:
- R v Fahda [1999] NSWCCA 267
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Scognamiglio (1991) 56 ACrim R 81
- R v Thomson and Houlten [2000] NSWCCA 309; 49 NSWLR 383
- R v Way [2004] NSWCCA 131
- The Queen v Johnson [2004] HCA 15