Citation: Regina v Bevan John Argent [2004] NSWCCA 270
Court: NSW Court of Criminal Appeal
Date: 10 August 2004
Judge(s): James J, Adams J, Bell J
Background
The applicant pleaded guilty in the District Court to eight counts of breaking, entering and stealing and one count of breaking and entering with intent to steal, committed across two overlapping periods in 2002. The offences fell into two groups: five offences (Group A) committed between 29 March and 18 April 2002, and four offences (Group B) committed between February and November 2002, including one committed while the applicant was on bail for the Group A offences.
The sentencing judge, Twigg DCJ, imposed concurrent fixed terms of 12 months on the Group B offences and concurrent terms of four years and six months on the Group A offences, accumulated on the Group B sentences. A non-parole period of three years was set for the Group A sentences. Three additional offences were taken into account on a Form 1 document.
The applicant sought leave to appeal on two grounds, arguing that the District Court had made two distinct errors in constructing the sentence structure.
Legal Issues
- Whether the sentencing judge failed to credit the 33 days the applicant spent in pre-sentence custody between his arrest on 18 April 2002 and his release on bail on 20 May 2002.
- Whether the sentencing judge failed to give practical effect to his own finding of special circumstances when specifying the non-parole period for the Group A sentences.
Decision
On the first ground, the Court of Criminal Appeal accepted that the 33 days of pre-sentence custody had not been reflected in the commencement dates of the sentences. The appropriate remedy was to backdate the commencement of the Group B fixed-term sentences by 33 days, from 29 November 2002 to 26 October 2002.
On the second ground, the Court accepted that the sentencing judge had expressly found special circumstances, principally the applicant's significant need for rehabilitation from long-term drug abuse, and had indicated an intention to structure the sentences to allow a longer than usual period on parole under supervision. Despite that finding, the non-parole period of three years was not reduced below the statutory default ratio relative to the head sentence. Bell J accepted the submission that this was inconsistent with the judge's stated intention, and that a non-parole period of two years and six months represented the minimum that justice required.
The Court held that both grounds of appeal were made out and intervened to vary the sentences accordingly. The correction to the non-parole period was described as a relatively modest variation rather than a substantial departure from the original sentencing outcome.
Orders Made
- Leave to appeal granted.
- Appeal allowed; sentences varied as follows:
- The 12-month fixed terms for the Group B offences (counts 1 to 4 of the committal for sentence) directed to commence on 26 October 2002 and expire on 25 October 2003.
- The four-year-and-six-month sentences for the Group A offences (counts 1 to 5 on the indictment) confirmed, directed to commence on 26 October 2003 and expire on 25 October 2008.
- The non-parole period for each Group A sentence varied to two years and six months, commencing 26 October 2003, with a first eligible parole date of 25 April 2006.
Key Takeaways
- A sentencing judge's express finding of special circumstances must be given practical effect in the non-parole period actually imposed; a failure to reduce the non-parole period below the statutory default ratio, despite such a finding, constitutes an appealable error.
- Pre-sentence custody must be properly reflected in the commencement dates of sentences; failure to credit such custody can be corrected on appeal by backdating the relevant sentences.
- The Court of Criminal Appeal confirmed that the appropriate vehicle for correcting both errors was a variation to the existing sentences rather than a wholesale resentencing.
- Where a sentencing judge identifies an offender's rehabilitation needs as grounding special circumstances, the resulting parole period should be structurally longer to accommodate supervision and treatment on release.
- No error was identified in the substantive head sentences of four years and six months for the Group A offences, which were confirmed in full.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 112 (breaking, entering and stealing)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), s 33
- Summary Offences Act 1988 (NSW)
Cases
- R v Howard [2001] NSWCCA 309
- R v LWP [2003] NSWCCA 215
- R v Ponfield (1999) 48 NSWLR 327