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Court of Criminal Appeal 27 February 2004

Regina v Toman

[2004] NSWCCA 31

Also reported as 144 A Crim R 171
DrugsTheft & propertyPublic order & justice offences
CRIMINAL LAW & PROCEDURE CROWN APPEAL ALLEGED INADEQUACY OF SENTENCE CIRCUMSTANCES OF OFFENDER AND OFFENCES DISCRETION TO DISMISS CROWN APPEAL

Citation: Regina v Toman [2004] NSWCCA 31
Court: New South Wales Court of Criminal Appeal
Date: 27 February 2004
Judges: Grove J (with Sully J and Bell J agreeing)

Background

The respondent pleaded guilty to eleven offences, predominantly break-and-enter and steal, along with escape from lawful custody and traffic matters. Charges 1 to 9 had been brought before the Drug Court, where an initial sentence was imposed and the respondent was ordered to participate in a drug treatment program. He failed to enter the program and committed two further break-and-enter offences (charges 10 and 11) on the night he was admitted.

The respondent was eventually brought back before the Drug Court for final sentence on charges 1 to 9 (under the Drug Court Act 1998) and for sentence on the two later offences. The sentencing judge imposed head sentences of three years and eleven months on charges 1 to 7 (with a twelve-month non-parole period) and four years on charges 10 and 11, all with non-parole periods of twelve months.

The Director of Public Prosecutions appealed to the Court of Criminal Appeal, contending the sentences were manifestly inadequate, particularly the non-parole periods.

  • How the Court of Criminal Appeal is constituted when hearing a Crown appeal from a Drug Court final sentence, and whether this differs from an offender's appeal.
  • Whether the Drug Court Act 1998 imposes a statutory ceiling on the final sentence that can be imposed for charges 1 to 9, limiting any increase on appeal.
  • Whether the sentences, and in particular the non-parole periods, were manifestly inadequate.
  • Whether the Court should exercise its residual discretion to dismiss the Crown appeal even if inadequacy were established.

Decision

Constitution of the court. The Court of Criminal Appeal noted an apparent anomaly in the statutory framework. Under the Criminal Appeal Act 1912, a Crown appeal against a Drug Court final sentence is heard by three judges (as required by s 3), whereas an offender's appeal from the same sentence is heard by a single judge under s 5AF(3). No counsel challenged the three-judge constitution for this Crown appeal, and the Court confirmed that constitution was correct, while flagging the asymmetry for attention.

Statutory ceiling on final sentence. The Drug Court Act 1998 limits the final sentence that can be imposed for charges subject to the drug program: the final sentence cannot exceed the initial sentence. This statutory restriction applied to charges 1 to 9, meaning that even if those sentences were inadequate, the Court could not increase them beyond the initial terms. Charges 10 and 11 were not subject to this restriction.

Adequacy of sentence. The Court found the four-year head sentences imposed on charges 10 and 11 were not inadequate. However, it considered the twelve-month non-parole periods across the charges to be overly lenient, reflecting inadequacy in that component of the sentencing.

Residual discretion. Despite finding the non-parole periods inadequate, the Court exercised its residual discretion to dismiss the Crown appeal. Key considerations included the respondent's lengthy prior custody, the imminent eligibility date for parole, the statutory ceiling preventing any increase to charges 1 to 9, and the possibility that the respondent might engage with rehabilitation on release. The Court inferred the sentencing judge had deliberately imposed a lenient non-parole period to give the respondent an opportunity to demonstrate he could lead a law-abiding life.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • Under the Criminal Appeal Act 1912, a Crown appeal against a Drug Court final sentence is heard by three judges, while an offender's appeal from the same sentence is heard by a single judge. The Court of Criminal Appeal identified this as a notable asymmetry in the statutory scheme.
  • The Drug Court Act 1998 imposes a statutory ceiling on final sentences for charges admitted into the drug program: the final sentence cannot exceed the initial sentence, which constrains any appellate intervention on those charges.
  • Where only some of the charges before the court are subject to the Drug Court Act restriction, the approach to sentence differs depending on which category each charge falls into.
  • In dismissing a Crown appeal, a court may exercise its residual discretion even where inadequacy in a component of the sentence (here, the non-parole period) is established, taking into account factors such as time served, imminence of parole eligibility, and prospects of rehabilitation.
  • The adequacy of a head sentence and the adequacy of a non-parole period are assessed separately, and a finding that the non-parole period is inadequate does not automatically lead to appellate intervention.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 3, 5AA, 5AF, 5D
- Drug Court Act 1998 (NSW), ss 4, 7, 12

Cases:
No specific cases were cited in the portions of the judgment provided.