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Court of Criminal Appeal 30 March 2005

Regina v Maxfield

[2005] NSWCCA 136

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW AND PROCEDURE SENTENCE SETTING OF NON PAROLE PERIOD SPECIAL CIRCUMSTANCES VERY SMALL EFFECT ON OVERALL SENTENCES

Citation: Regina v Maxfield [2005] NSWCCA 136
Court: NSW Court of Criminal Appeal
Date: 30 March 2005
Judges: Grove J, Howie J, Hall J

Background

The applicant pleaded guilty in the Parramatta District Court to seven counts of robbery while armed with an offensive weapon. He also had three further armed robberies and two assaults with intent to rob taken into account on a Form 1 (a procedural mechanism allowing related offences to be considered at sentencing without separate convictions). All offences were committed while the applicant was on parole.

Delaney DCJ constructed a graduated series of sentences, including multiple fixed terms and one sentence with a non-parole period, resulting in an effective total custodial term of eight years and nine months with an aggregate non-parole period of six years and nine months. The applicant had a prior criminal history that included robbery offences.

The applicant sought leave to appeal on the basis that the sentence was manifestly excessive, pointing specifically to the relationship between the total head sentence and the non-parole period.

  • Whether the sentencing judge erred in applying special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999, given that the aggregate non-parole period represented 77 per cent of the aggregate head sentence rather than the statutory default of 75 per cent

Decision

Section 44 of the Crimes (Sentencing Procedure) Act 1999 requires that the balance of a sentence (the period after release on parole) must not exceed one third of the non-parole period, unless special circumstances are found. Put another way, the default position is a non-parole period of 75 per cent of the head sentence. The applicant argued that an aggregate non-parole period of 77 per cent was incompatible with any genuine finding of special circumstances.

Grove J rejected this argument. His Honour found that the sentencing judge had correctly applied special circumstances, but only to the one sentence that carried a non-parole period, being the final count of seven years and six months. On that individual sentence, the statutory arithmetic would have produced a non-parole period of five years and seven and a half months. The sentencing judge imposed five years and six months, a small but genuine reduction reflecting the special circumstances finding.

The applicant's submission that the judge had overlooked the cumulative effect of the fixed-term sentences was also rejected. Grove J noted that the sentencing judge had expressly invited counsel to check all commencement and expiry dates, and trial counsel had confirmed the figures were correct. The aggregate ratio of 77 per cent was simply the mathematical result of the structure of the sentences, not evidence of error.

Grove J also noted independently that the facts of the offences and the applicant's prior record, including previous parole for robbery, meant that no lesser sentence than that imposed was warranted in any event.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999, the special circumstances finding and its effect on the non-parole ratio are assessed at the level of the individual sentence to which a non-parole period is attached, not necessarily against an aggregate of all sentences including fixed terms.
  • Where a sentencing structure combines fixed terms with one sentence carrying a non-parole period, the aggregate proportion of non-parole to head sentence may differ from the statutory default without constituting error.
  • Even a very small reduction from the statutory non-parole proportion is sufficient to give effect to a special circumstances finding; the Court of Criminal Appeal declined to require any particular quantum of reduction.
  • No error was established simply because the aggregate non-parole period represented 77 per cent of the aggregate head sentence, where the sentencing judge had applied the special circumstances finding correctly to the only sentence that required one.
  • In dismissing the appeal, the Court confirmed that an applicant's prior record of relevant offending and the commission of further offences while on parole are proper factors bearing on whether any lesser sentence is warranted.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases cited: None identified in the judgment or metadata.