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Court of Criminal Appeal 11 April 2005

Regina v Corey Styman

[2005] NSWCCA 129

Assault & violenceTheft & propertyPublic order & justice offences

Citation: Regina v Corey Styman [2005] NSWCCA 129
Court: NSW Court of Criminal Appeal
Date: 11 April 2005
Judge(s): McColl JA, Barr J, Johnson J

Background

The appellant pleaded guilty in the District Court to being an accessory before the fact of an armed robbery. The robbery involved supplying a blood-filled syringe to a co-offender, who used it to threaten a twelve-year-old schoolgirl on a train and steal her mobile phone. The appellant remained nearby during the robbery, and police later found the victim's phone in the co-offender's bag with the appellant's SIM card installed.

Delaney DCJ sentenced the appellant to a non-parole period of 18 months and a balance of term of 18 months, giving a total sentence of three years. His Honour found special circumstances justifying an extended parole period beyond the statutory one-third ratio set out in s 44 of the Crimes (Sentencing Procedure) Act.

The appellant sought leave to appeal against the sentence, arguing that the finding of special circumstances had produced a longer overall sentence than would otherwise have been imposed, and separately that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by finding special circumstances under s 44 of the Crimes (Sentencing Procedure) Act in a way that resulted in a longer overall sentence than would otherwise have been imposed.
  • Whether the overall sentence of three years, including the 18-month non-parole period, was manifestly excessive having regard to the nature of the offence and the appellant's personal circumstances, including possible Attention Deficit Hyperactivity Disorder and low cognitive ability.

Decision

On the first ground, Barr J found that the sentencing judge had correctly understood s 44 as requiring the non-parole period to be set first, with the balance of sentence then determined separately. His Honour had extended the parole period to 18 months on the basis of special circumstances, rather than applying the default one-third ratio of six months. The judgment records a candid exchange at sentencing about the uncertainty surrounding the operation of the amended s 44, with both the judge and defence solicitor acknowledging the unsettled state of the law at the time.

Barr J found no error in the approach taken. The sentencing judge had not inflated the head sentence as a consequence of finding special circumstances; he had fixed the non-parole period at 18 months and then extended the parole period beyond the statutory minimum to allow for adequate supervision and rehabilitation. The first ground of appeal was not made out.

On the second ground, the Court considered evidence from two expert witnesses about the appellant's psychological and cognitive profile. The experts described probable significant neurological difficulties, borderline cognitive functioning, severe behavioural deficits, and a need for structured support. Barr J noted that the sentencing judge carefully reviewed this evidence but did not accept that the appellant's intellectual deficit was so significant as to preclude general deterrence as a sentencing purpose.

The Court held that the 18-month non-parole period was not outside the proper range of sentencing discretion for a serious offence committed as part of a pattern of offending. The extended parole period was also within the proper range. The second ground of appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 44 of the Crimes (Sentencing Procedure) Act, as considered in this decision, the sentencing court sets the non-parole period first; the balance of term is then determined, with special circumstances permitting that balance to exceed one-third of the non-parole period.
  • A finding of special circumstances that extends the parole period does not constitute error simply because the overall sentence is longer than it would have been without that finding, provided the non-parole period itself is within the proper range.
  • The Court of Criminal Appeal confirmed that borderline cognitive functioning and probable neurological difficulties, while relevant to special circumstances justifying extended supervision on parole, do not automatically preclude general deterrence as a sentencing consideration.
  • No error was established in the sentencing judge's approach to the amended s 44, despite acknowledged uncertainty in the legal profession at the time about how the provision was to be applied in practice.
  • In dismissing the appeal, the Court affirmed that a three-year sentence with an 18-month non-parole period fell within the proper sentencing range for accessory before the fact of an armed robbery involving a threat with a blood-filled syringe against a child.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (court to set non-parole period; balance of term not to exceed one-third unless special circumstances found)

Cases:
No cases were cited in the provided text.