Citation: R v Jones [2004] NSWCCA 432
Court: NSW Court of Criminal Appeal
Date: 10 December 2004
Judge(s): Tobias JA, Sully J, Hoeben J
Background
The respondent pleaded guilty to robbery whilst armed with an offensive weapon, an offence committed on 22 July 2001 while he was on parole. The offence involved threatening a victim in a car park with what appeared to be a syringe, stealing from him, and assaulting him during a struggle. The respondent was not identified until DNA testing in 2003 and was charged in November 2003.
By the time he came before the sentencing judge, the respondent was already serving sentences imposed in February and March 2003 for separate robbery and other offences committed in late 2001. Those sentences had been backdated to commence on 29 November 2001.
On 5 August 2004, the District Court sentenced the respondent to 6 months imprisonment for the subject offence, backdated to 29 November 2001 and made wholly concurrent with the pre-existing sentences. The practical effect was that the sentence had already expired before it was even pronounced, meaning no additional punishment was imposed for the armed robbery. The Director of Public Prosecutions appealed.
Legal Issues
- Whether the sentence imposed was manifestly inadequate, given that it had already expired at the time of imposition and imposed no additional punishment whatsoever.
- Whether it was appropriate, given the nature and seriousness of the offence, for the sentencing judge to effectively treat the subject offence as though it were being sentenced at the same time as the earlier offences.
- How to apply the totality principle (the requirement that the overall sentence reflect the totality of offending without being crushing) where the offender was already serving a pre-existing sentence.
Decision
The Court of Criminal Appeal held that the sentence was manifestly inadequate. By backdating the sentence so that it had already run its course before it was imposed, the sentencing judge in effect imposed no punishment at all for a serious offence. The Court found it was not appropriate to treat the subject offence as though it were being sentenced simultaneously with the earlier offences, particularly given the gravity of armed robbery and the fact it was committed while the respondent was on parole.
The Court acknowledged the totality principle, which requires a sentencing court to ensure that the cumulative effect of multiple sentences is not disproportionate to the overall criminality involved. However, it held that applying that principle does not justify an outcome where a serious offence attracting a maximum of 20 years receives no effective punishment at all.
The respondent argued that the loss of parole eligibility constituted sufficient additional consequence, and that any new sentence should be minimal. The Court rejected this, finding there was no certainty parole would have been granted in any event, and that a deprivation of a parole opportunity involved a subtlety that neither the public nor the victim would recognise as meaningful punishment. The Court considered that some term of imprisonment extending beyond the existing sentences was necessary to reflect the objective seriousness of the offence and to give effect to deterrence and denunciation, while still accommodating the respondent's rehabilitation prospects.
The Court resentenced the respondent to 3 years imprisonment commencing 10 January 2004, with a 2-year non-parole period expiring 9 January 2006. This result extended his custodial exposure by approximately 6 months beyond his existing release date, and attached parole conditions requiring entry into a full-time drug rehabilitation program.
Orders Made
- Leave to appeal granted.
- Appeal allowed; the sentence imposed by Maguire DCJ on 5 August 2004 was quashed.
- In lieu, the respondent was sentenced to 3 years imprisonment, taken to have commenced on 10 January 2004 and expiring on 9 January 2007, with a non-parole period of 2 years commencing 10 January 2004 and expiring 9 January 2006.
- Parole conditions imposed, including supervision under the Crimes (Administration of Sentences) Act 1999 regulations and immediate entry into a full-time drug rehabilitation program approved by the supervising parole officer.
Key Takeaways
- Imposing a sentence that has already expired before the date of sentencing, with the result that no additional punishment is imposed for a serious offence, constitutes manifest inadequacy and warrants intervention on Crown appeal.
- The totality principle does not permit a sentencing court to treat a serious offence as effectively absorbed into earlier sentences merely because those sentences were imposed close in time or arose from a similar period of offending.
- Where an offence is committed while on parole, this is an aggravating feature that weighs against treating the matter as though it were being sentenced concurrently with the earlier parole-triggering offences.
- The Court of Criminal Appeal confirmed that the loss of parole eligibility as a by-product of administrative consequences does not constitute a sufficient substitute for actual additional imprisonment for a grave offence.
- Rehabilitation prospects remain relevant to the structure of a sentence on resentencing, including the form of parole conditions, but do not displace the need for the sentence to reflect objective seriousness, deterrence, and denunciation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery whilst armed)
- Criminal Appeal Act 1912 (NSW), s 5D(1) (Crown appeal against sentence)
- Crimes (Administration of Sentences) Act 1999 (NSW)
Cases:
- R v Henry & Ors (1999) 46 NSWLR 346
- R v Pearce (1998) 194 CLR 610
- R v Tran [1999] NSWCCA 109
- R v Fernando [2002] NSWCCA 28
- R v Vranic (NSWCCA, 7 May 1991, unreported)
- R v Cicekdag [2004] NSWCCA 357
- Thompson (2000) 49 NSWLR 383
- R v Kay [2004] NSWCCA 130
- R v Cotter [2003] NSWCCA 273
- R v KM [2004] NSWCCA 65
- R v Hernando (2002) 136 A Crim R