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Court of Criminal Appeal 8 July 2004

Regina v Walker

[2004] NSWCCA 230

Assault & violenceTheft & property
CRIMINAL LAW ROBBERY IN COMPANY SENTENCE TOTALITY OFFENCE WHILST ON PAROLE DOUBLE PUNISHMENT

Citation: Regina v Walker [2004] NSWCCA 230
Court: NSW Court of Criminal Appeal
Date: 8 July 2004
Judges: Dowd J, Hislop J, Smart AJ

Background

The appellant pleaded guilty to one count of robbery in company under s 97(1) of the Crimes Act 1900 after she and two others snatched a handbag from a woman on a Blacktown street, during which the victim was grabbed by the neck, struck in the face, and threatened with a stick. The maximum penalty for the offence is 20 years imprisonment. On 21 March 2003, Gibb DCJ in the District Court sentenced the appellant to 43 months and 6 days imprisonment, with the sentence commencing on 6 October 2002 and a non-parole period of 28 months and 15 days.

The commencement date of 6 October 2002 was not the date of arrest. The appellant had been in custody from 26 February 2002 (the date of the robbery) serving the balance of a revoked parole period from an earlier sentence. The Parole Board had stood over the appellant's application to have her parole revocation reconsidered, on multiple occasions, pending the outcome of the robbery proceedings. The Board ultimately fixed 5 October 2002 as the date the balance of that parole period expired, and the sentencing judge dated the new sentence from that point.

The appellant did not challenge the length of the head sentence or the non-parole period. Her complaint was narrower: the sentencing judge should have directed the sentence to commence on an earlier date.

  • Whether the totality principle required the sentencing judge to backdate the commencement of the sentence, given the continuous period of custody the appellant would serve
  • Whether the sentencing structure amounted to double punishment, because the prolonged parole revocation period was itself a consequence of the subject offence, yet commission of the offence on parole had already been treated as an aggravating factor in setting the head sentence

Decision

On the totality ground, the Court found no error. The head sentence and non-parole period were within the permissible range for a serious example of the offence. Taking account of the history of the matter, including the time gap between the earlier offences and the robbery and the benefit the appellant had already received from the 6-month sentence being treated as part of her parole period, totality did not require further backdating of the commencement date.

The double punishment ground succeeded. Evidence from Parole Board documents (tendered on appeal, though not before the sentencing judge) showed the appellant had applied for reconsideration of her parole revocation as early as April 2002. The Board stood the application over on multiple occasions because of the pending robbery proceedings. Hislop J, applying the reasoning in R v Kitchener [2003] NSWCCA 134, held that where continued parole revocation is properly attributable to the commission of the subject offence, and the fact that the offence occurred on parole has already been used as an aggravating factor, the result is an element of double punishment requiring correction.

The Court accepted that, had the Parole Board determined the reconsideration application at an early stage, the appellant could reasonably have expected release to parole by approximately June 2002. The four-month gap between that estimated release date and the actual expiry of the parole period on 5 October 2002 was attributable to the Board's postponement caused by the robbery proceedings. Accordingly, the commencement date of the sentence was adjusted from 6 October 2002 to 6 June 2002.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence quashed; in lieu thereof, imprisonment for 43 months and 6 days commencing 6 June 2002 and expiring 11 January 2006
  • Non-parole period of 28 months and 15 days, expiring 20 October 2004

Key Takeaways

  • Where a Parole Board stands over a parole reconsideration application because of pending proceedings arising from the subject offence, and that deferral extends the period of parole custody, an element of double punishment can arise if the sentencing court has also treated the commission of the offence on parole as an aggravating factor.
  • The Court of Criminal Appeal confirmed, following R v Kitchener, that correcting double punishment of this kind is achieved by adjusting the commencement date of the new sentence rather than reducing the head sentence or non-parole period.
  • Although the exercise involves some speculation (since the Parole Board might not have released the offender even if it had acted earlier), the Court held that such speculation does not preclude the inquiry: a likely release date can be estimated and used to anchor the adjustment.
  • The totality principle, while applicable where a new sentence is imposed on a person already in custody, does not automatically require backdating. The court must weigh the full sentencing history, the nature of the offences, and any prior benefits already received by the offender.
  • New evidence not before the sentencing judge can, in appropriate circumstances, be admitted on appeal to support a ground of double punishment, particularly where the Crown does not oppose its tender.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 47(2)(a) and (3) (commencement of sentences)

Cases:
- R v Hajjo (NSWCCA, 31 August 1992, unreported) (totality principle where new sentence imposed on a person already serving a sentence)
- R v Kitchener [2003] NSWCCA 134 (double punishment arising from extended parole revocation attributable to the subject offence)