AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 21 September 2004

R v Jammeh

[2004] NSWCCA 327

Sexual offencesAssault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCING ACCUMULATION OF SENTENCES PRINCIPLES OF TOTALITY "SPECIAL CIRCUMSTANCES" PRE

Citation: Jammeh v R [2004] NSWCCA 327
Court: NSW Court of Criminal Appeal
Date: 21 September 2004
Judge(s): Wood CJ at CL, Buddin J, Shaw J

Background

The appellant had been sentenced in the District Court for three separate offences committed on different dates: a robbery (February 2001), an armed robbery (June 2002), and an indecent assault (November 2002). Two different District Court judges sentenced him for these matters on separate occasions. The sentences were structured so that each term commenced at the expiry of the previous one.

The aggregate result was a total head sentence of 9 years with a non-parole period of 7 years and 6 months. The appellant sought leave to appeal against all three sentences, arguing that the overall structure, particularly the combined non-parole period, was excessive.

A further complication arose because the sentencing judge for the robbery had not correctly accounted for pre-sentence custody served by the appellant. This meant the commencement date of that sentence was also in dispute.

  • Whether the sentencing judges correctly applied the totality principle when accumulating the three sentences
  • Whether the overall non-parole period, relative to the total head sentence, was disproportionate or anomalous
  • Whether "special circumstances" justifying a departure from the standard non-parole ratio had been properly recognised across the accumulated sentences
  • Whether the commencement date for the robbery sentence correctly reflected the appellant's pre-sentence custody

Decision

The Court of Criminal Appeal found no basis to interfere with the length of the overall head sentence. The total term of 9 years was considered appropriate given the nature and number of the offences and the relevant aggravating factors, including that the appellant was on conditional liberty at the time of the February 2001 robbery.

However, the Court found that the cumulative non-parole period of 7 years and 6 months produced an anomalous result when assessed against the total sentence. Buddin J, with whom Wood CJ at CL and Shaw J agreed, observed that where multiple sentences are accumulated, they should generally be adjusted downwards to produce an acceptable overall result, citing the principle from R v Close (1993) 31 NSWLR 743. The non-parole periods for the armed robbery and indecent assault sentences were each reduced to remedy this imbalance.

On the commencement date issue, the Court accepted that pre-sentence custody had not been properly reflected in the robbery sentence. The non-parole period for that offence was adjusted to commence on 30 September 2002, bringing it into line with the period the appellant had actually spent in custody before sentence.

Orders Made

  • Leave to appeal against the robbery sentence granted; appeal allowed as to commencement date only. Non-parole period of 2 years to commence 30 September 2002, expiring 29 September 2004; balance of term to expire 29 September 2005.
  • Leave to appeal against the armed robbery sentence granted; appeal allowed in part. Total sentence confirmed; non-parole period quashed and replaced with 3 years and 3 months commencing 30 September 2004, expiring 29 December 2007; balance of term expiring 29 September 2010.
  • Leave to appeal against the indecent assault sentence granted; appeal allowed in part. Total sentence confirmed; non-parole period quashed and replaced with 1 year commencing 30 December 2007, expiring 29 December 2008; balance of term expiring 30 December 2010.
  • Earliest date of parole eligibility fixed at 29 December 2008.

Key Takeaways

  • The totality principle requires that, where multiple sentences are accumulated, each sentence should ordinarily be adjusted downward to ensure the overall result is not disproportionate, even where each individual sentence would otherwise be appropriate in isolation.
  • A non-parole period that is excessive relative to the total head sentence can constitute error warranting appellate intervention, even if the head sentence itself is unimpeachable.
  • Pre-sentence custody must be properly reflected in the commencement date of a sentence; failure to do so is a correctable error on appeal.
  • Confirming the total sentence while quashing and replacing only the non-parole period is an available remedy where the head terms are found to be appropriate but the parole structure is not.
  • The Court relied on a body of established authority, including Mill v The Queen, Pearce v The Queen, R v Close, and R v Simpson, confirming that these principles governing accumulated sentences are well settled in NSW.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Johnson v The Queen [2004] HCA 15
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- R v Bolamatu [2002] NSWCCA 454
- R v Clissold [2002] NSWCCA 356
- R v Close (1993) 31 NSWLR 743
- R v Crombie [1999] NSWCCA 297
- R v Doan (2000) 50 NSWLR 115
- R v Griggs (1999) 109 A Crim R 484
- R v Keen [2004] NSWCCA 86
- R v LWP [2003] NSWCCA 215
- R v McHugh (1985) 1 NSWLR 588
- R v Simpson (1992) 61 A Crim R 58
- R v Simpson (2001) 53 NSWLR 704
- R v Sivyer [2002] NSWCCA 410