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Court of Criminal Appeal 16 August 2004

R v Morris

[2004] NSWCCA 283

Theft & property
CRIMINAL LAW SENTENCING WHETHER NON PAROLE PERIOD SHOULD BE REDUCED.

Citation: R v Morris [2004] NSWCCA 283
Court: NSW Court of Criminal Appeal
Date: 16 August 2004
Judges: Handley JA, James J, Howie J

Background

The applicant was sentenced in the District Court on 30 October 2003 for two break-and-enter offences committed roughly six months apart. For the more serious aggravated offence (under s 113 of the Crimes Act 1900), the sentencing judge imposed five years imprisonment with a non-parole period of three years and four months, commencing 9 March 2003. For the earlier offence (under s 112), his Honour imposed a fixed term of three years and four months, to commence on 9 July 2004, partway through the first sentence.

The mechanical effect of stacking a fixed term on top of the non-parole period of the first sentence was that the applicant's combined non-parole period stretched to four years and eight months out of a total term of five years. Put simply, that meant 93.3 per cent of the total sentence was non-parole period. The applicant sought leave to appeal, arguing that this outcome was both excessive and inconsistent with what the sentencing judge appeared to have intended.

The applicant had a significant criminal history, including multiple prior convictions for housebreaking, earlier terms of imprisonment, and the aggravating feature that he was on parole for a similar offence when he committed the first of the two offences under consideration. Matters relating to his background, drug dependency, and prospects for rehabilitation were also before the Court.

  • Whether the cumulation of a fixed term on the non-parole period of the first sentence, producing a combined non-parole period of 93.3 per cent of the total term, was excessive or inconsistent with the sentencing judge's stated intention.
  • Whether the overall non-parole period should be reduced to reflect the genuine purpose of parole: providing a period of supervised reintegration into the community.
  • Whether special circumstances existed justifying a departure from the standard ratio of non-parole period to total sentence.

Decision

The Court of Criminal Appeal found that the structure of the sentences as imposed in the District Court produced a result inconsistent with what the sentencing judge appeared to have intended. When a fixed term is cumulated on the non-parole period of a prior sentence, the arithmetic consequence can be that the offender has almost no parole period at all. Here, only 6.7 per cent of the total sentence remained as a post-release supervisory period, which the Court regarded as problematic given the purposes served by parole.

Howie J noted that, while the overall seriousness of the offending and the applicant's criminal history justified a substantial minimum term, some reduction in the non-parole period was warranted to give the applicant a meaningful incentive to reform while in custody and a genuine period of supervised release. His Honour expressed doubt that, had the sentences been structured as the judge appeared to intend, the Court would have intervened at all. However, without a Crown appeal, the Court could not increase the overall sentence.

The Court followed the approach in Mill v The Queen (1988) 166 CLR 59 rather than Pearce v The Queen (1998) 194 CLR 610 in restructuring the sentences on appeal, citing the practical difficulty in readjusting sentences at the appellate level. The resulting sentences were described as reduced because they operate as fully cumulative terms, and do not represent what the sentences ought independently to have been.

Orders Made

  • Leave to appeal granted; sentences imposed in the District Court quashed.
  • For the break, enter and steal offence (s 112): three years imprisonment with a non-parole period of two years, commencing 9 March 2003, non-parole period expiring 8 March 2005, with the applicant to be released to parole on that date subject to the next sentence.
  • For the aggravated break, enter and steal offence (s 113): non-parole period of three years commencing 9 March 2004, expiring 8 March 2007 (eligible release to parole date); balance of term of one year to date from 9 March 2007.

Key Takeaways

  • A sentencing structure that cumulates a fixed term on the non-parole period of an earlier sentence can produce a combined non-parole proportion that is grossly inconsistent with the sentencing court's stated intention, and the Court of Criminal Appeal will intervene in such circumstances.
  • The purpose of a non-parole period is not simply to set a minimum time to be served; it also preserves a meaningful period of post-release supervision, and a non-parole period amounting to 93.3 per cent of the total sentence undermined that purpose.
  • No finding of special circumstances was made in this case, yet the Court still reduced the non-parole period on the basis that the structure of the original sentences was internally inconsistent and produced an unintended result.
  • Where sentences are restructured on appeal, Mill v The Queen (1988) 166 CLR 59 offers an available methodology when the practical difficulties of readjusting individual sentences make the Pearce v The Queen (1998) 194 CLR 610 approach unworkable.
  • Absent a Crown appeal, the Court of Criminal Appeal cannot increase a sentence to achieve a more beneficial structure for the offender, even where a longer total term with a lower non-parole proportion might better serve rehabilitation goals.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 105A, 112, 113
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 58

Cases:
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- The Attorney General's Application No. 1 under s 26 of the Criminal Procedure Act (1999) 48 NSWLR 27
- Brewster (1998) 1 Crim App R 220