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Court of Criminal Appeal 30 August 2004

Regina v Henry

[2004] NSWCCA 306

Theft & property
PLEAS OF GUILTY SUBJECTIVE CIRCUMSTANCES PRINCIPLE OF TOTALITY ACCUMULATION OF SENTENCES SPECIAL CIRCUMSTANCES DELAY IN PROCESSING DNA EVIDENCE

Citation: Regina v Henry [2004] NSWCCA 306
Court: New South Wales Court of Criminal Appeal
Date: 30 August 2004
Judge(s): Grove J, Simpson J, Shaw J

Background

The applicant pleaded guilty in the District Court to two counts of break, enter and steal, with a further six offences taken into account on a Form 1. The offences involved a jewellery shop in Eden and a private home in Kiama, committed in 2001 and 2002 respectively. The applicant's DNA, left at both scenes when he cut himself breaking glass, was eventually matched to him after a significant laboratory backlog delayed analysis until May 2003.

The applicant had also been sentenced separately in October 2002 for nine earlier offences, including break, enter and steal. He was released on parole from that sentence in early March 2003, but his parole was revoked after the DNA results came through and he was returned to custody on 7 July 2003. The District Court sentenced him in October 2003, imposing partially accumulated sentences totalling four years with a non-parole period of three years and three months for the new matters alone.

The applicant sought leave to appeal against the severity of those sentences, raising concerns about the application of the totality principle and the refusal to find special circumstances justifying a reduced non-parole period ratio.

  • Whether the District Court properly applied the principle of totality when sentencing, having regard not only to the offences before it but also to the earlier sentences the applicant was already serving
  • Whether special circumstances existed under s 44(3) of the Crimes (Sentencing Procedure) Act 1999 warranting a variation of the standard non-parole period ratio
  • Whether the sentencing judge should have found special circumstances given the applicant's subjective circumstances, including his Aboriginal background, psychological difficulties, drug dependency, and the delay in DNA processing
  • Whether the sentencing judge was required under s 50(1) of the Crimes (Sentencing Procedure) Act 1999 to make a direction that the applicant be released on parole at the end of each non-parole period, even where cumulative sentences were imposed

Decision

The Court found error in the District Court's application of the totality principle. The sentencing judge had considered totality only in relation to the offences on the indictment before him, without accounting for the earlier sentences the applicant was serving. When both sets of sentences were viewed together, the combined custodial burden was approximately four years and eight months head sentence with a non-parole period of nearly four years, a proportion the Court of Criminal Appeal considered warranted intervention.

On special circumstances, the Court accepted that the applicant's subjective circumstances, including his troubled background, psychological assessment findings of severe anxiety and depression, his Aboriginal heritage, his history of drug dependency, and the unusual delay caused by the DNA backlog, justified a finding of special circumstances. The sentencing judge's conclusion that no special circumstances existed and his expressed lack of hope for rehabilitation were found to be errors in the exercise of the sentencing discretion.

The Court resentenced the applicant, reducing the non-parole periods for both counts to reflect a more favourable ratio between the non-parole period and the head sentence, bringing the overall sentence into better alignment with the totality principle when both sets of proceedings were considered together.

A further issue arose after the hearing was concluded. The Court identified that the sentencing judge had failed to make the mandatory parole direction required by s 50(1) of the Crimes (Sentencing Procedure) Act 1999 in respect of sentences of three years or less. The Court noted a legislative anomaly: where cumulative sentences are each three years or less, a court is required to make a s 50(1) direction even though a subsequent cumulative sentence may make compliance with that direction impossible. Simpson J observed that this anomaly warrants legislative attention.

Orders Made

  • Count one: imprisonment for two years commencing 7 July 2003, with a non-parole period of twelve months expiring 6 July 2004
  • Direction that the applicant be released on parole on 6 July 2004 (count one)
  • Count two (taking into account Form 1 offences): imprisonment for three years commencing 7 July 2004, with a non-parole period of one and a half years expiring 6 January 2006
  • Direction that the applicant be released on parole on 6 January 2006 (count two)

Key Takeaways

  • The totality principle requires a sentencing court to have regard to all sentences an offender is subject to, including earlier sentences already being served, not only the offences currently before the court.
  • Special circumstances under s 44(3) of the Crimes (Sentencing Procedure) Act 1999 can be established by a combination of factors including psychological vulnerability, Aboriginal background, entrenched drug dependency, and procedural delay in the investigation, even where an offender has a significant prior record.
  • Under s 50(1) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court is required to make a direction for release on parole at the expiration of each non-parole period where the head sentence is three years or less, regardless of whether cumulative sentences will make compliance with that direction practically impossible.
  • The Court of Criminal Appeal identified a legislative anomaly in s 50(2): the provision appears to contemplate non-compliance with the mandatory s 50(1) obligation, and Simpson J expressly recommended the legislature's attention to that anomaly.
  • Delay caused by a laboratory backlog in processing DNA evidence, which prolonged the period between offending and charge, was treated as a relevant factor in the sentencing exercise, contributing to a finding of special circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 3; s 44(3); s 50(1); s 50(2)

Cases
- R v Clark (1995) 78 A Crim R 226
- R v Clissold (Ian Raymond) [2002] NSWCCA 356 (unreported, 19 August 2002)
- R v Mohamed Hakem Hajjo NSWCCA (unreported, 31 August 1992)
- R v Simpson NSW CCA (unreported, 18 June 1992)