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Court of Criminal Appeal 17 August 2004

REGINA v Michael John SARCASMO

[2004] NSWCCA 277

Assault & violenceTheft & property

Citation: Regina v Michael John Sarcasmo [2004] NSWCCA 277
Court: NSW Court of Criminal Appeal
Date: 17 August 2004
Judge(s): Wood CJ at CL, Hulme J, Bell J

Background

The applicant pleaded guilty in the Local Court to robbery in circumstances of aggravation under s 95(1) of the Crimes Act 1900. The aggravating circumstance was that he maliciously inflicted actual bodily harm on the victim, a 44-year-old woman, during a handbag snatch on a public footpath in Brighton on 17 March 2003. The victim fell to the pavement during the struggle and sustained scrapes and bruising.

The applicant was sentenced in the District Court by Judge Shadbolt on 21 November 2003. He received a total sentence of three years' imprisonment with a non-parole period of two years. The sentencing judge identified a special circumstance, namely the applicant's history of heroin addiction, which justified departing from the standard ratio between the non-parole period and the balance of the sentence.

The applicant sought leave to appeal against the severity of the sentence, arguing the non-parole period was excessive and that the sentencing judge had committed a procedural error in the way the sentence was structured.

  • Whether the non-parole period of two years was manifestly excessive in the circumstances, including the applicant's drug addiction, background, and the fact that this would be his first term of imprisonment.
  • Whether the District Court erred by failing to comply with the sentencing procedure required under s 44 of the Crimes (Sentencing Procedure) Act 1999 as amended by the Crimes Legislation Further Amendment Act 2003, including the failure to separately specify the balance of the term and to direct the applicant's release on parole.

Decision

Bell J, with Wood CJ at CL and Hulme J agreeing, found that the sentencing judge had not followed the requirements of the Crimes (Sentencing Procedure) Act 1999 as it applied at the date of sentencing. Specifically, the judge was required under s 44(1) to set a non-parole period and then separately specify the balance of the term. The judge also failed to direct the applicant's release on parole, as was required. These omissions constituted a sentencing error warranting intervention.

The Court was also persuaded to intervene on the length of the non-parole period. Bell J identified special circumstances arising from the applicant's need for extended supervised parole to address his drug addiction through counselling and treatment. The fact that this would be the applicant's first term of imprisonment was an additional relevant factor.

The total sentence of three years' imprisonment was maintained, but the non-parole period was reduced from two years to eighteen months. A corresponding balance of term of eighteen months was specified, and the Court directed the applicant's release on parole at the expiration of the non-parole period, subject to standard conditions including compliance with directions from the Probation and Parole Service regarding drug treatment.

Orders Made

  • Leave to appeal granted.
  • Sentence imposed in the District Court quashed.
  • In lieu thereof, the applicant was sentenced to a non-parole period of eighteen months commencing 19 March 2003 and expiring 18 September 2004, with a balance of term of eighteen months, making a total sentence of three years' imprisonment expiring 18 March 2006.
  • The applicant directed to be released on parole at the expiration of the non-parole period, subject to standard conditions including compliance with any reasonable direction of the Probation and Parole Service with respect to drug treatment.

Key Takeaways

  • A sentencing court is required under s 44(1) of the Crimes (Sentencing Procedure) Act 1999 to separately specify both the non-parole period and the balance of the term. Failure to do so, and failure to direct release on parole, constitutes an error justifying appellate intervention.
  • Under the amended sentencing framework introduced by the Crimes Legislation Further Amendment Act 2003, the procedural requirements for structuring a sentence changed, and courts must apply those requirements as they stood at the date of sentencing.
  • A first term of imprisonment is a recognised consideration when assessing whether special circumstances exist to depart from the standard statutory ratio between the non-parole period and the balance of term.
  • The Court of Criminal Appeal confirmed that an offender's history of drug addiction and the need for extended post-release supervision and treatment can constitute special circumstances warranting a reduction in the non-parole period relative to the total sentence.
  • In this case, the overall sentence of three years was not disturbed; it was the internal structure of the sentence, specifically the length of the non-parole period, that was corrected.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 95(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(1), 44(2)
- Crimes Legislation Further Amendment Act 2003 (NSW)

Cases:
- R v Alcazar (unreported), Court of Criminal Appeal, 10 November 1995
- R v Goolagong (unreported), Court of Criminal Appeal, 28 September 1994
- R v Kain [2004] NSWCCA 143
- R v Kemsley [2003] NSWCCA (8 August 2003)
- R v Maloukis [2002] NSWCCA 155
- R v Way [2004] NSWCCA 131
- R v Wickham [2004] NSWCCA 193