Citation: Huynh v R [2005] NSWCCA 220
Court: NSW Court of Criminal Appeal
Date: 17 June 2005
Judge(s): Simpson J (with Barr J and Latham J agreeing)
Background
The applicant pleaded guilty in the District Court at Campbelltown to aggravated break, enter and commit a serious indictable offence under s 112(2) of the Crimes Act 1900. The circumstance of aggravation was that the offence was committed in company. During December 2003, the applicant and another man broke into residential premises in Punchbowl, collecting jewellery, watches, precious stones, and cosmetics valued at between $90,000 and $100,000.
The two men were discovered on the premises by the occupants' son, an off-duty police officer, who arrived during the burglary. The applicant struggled with the officer, throwing punches and causing him to fall, before being restrained with assistance and arrested. All stolen property was subsequently recovered.
The sentencing judge, English DCJ, imposed a non-parole period of five years and a balance of term of three years, for a total head sentence of eight years, commencing 2 April 2004. The applicant sought leave to appeal, arguing that the sentence was manifestly excessive and contained specific legal errors in its construction.
Legal Issues
- Whether the standard non-parole period of five years under the Crimes (Sentencing Procedure) Act 1999 was the correct benchmark, and how it interacted with the guilty plea discount
- Whether the sentencing judge, having found special circumstances, failed to give effect to that finding when structuring the non-parole and balance of term
- Whether an element of the offence (being committed in company) was wrongly used again as an additional circumstance of aggravation
- Whether the offence was correctly assessed as mid-range in gravity
- Whether the resulting head sentence of eight years was manifestly excessive
Decision
Simpson J (with whom Barr J and Latham J agreed) found several errors in the approach taken below. First, the sentencing judge intended to allow a 20% discount for the utilitarian value of the guilty plea but did not actually apply that reduction to the non-parole period. The standard non-parole period represents the benchmark for an offence at the mid-range of objective seriousness tried after a plea of not guilty, and it must be adjusted downward to reflect a guilty plea.
Second, the sentencing judge found special circumstances warranting a departure from the standard one-third ratio between the balance of term and total sentence, but the balance of term actually imposed (three years) was nearly double what a standard non-parole period of five years would ordinarily attract. This meant the finding of special circumstances was acknowledged but not meaningfully implemented.
Third, the applicant being in company was the prescribed circumstance of aggravation that elevated the offence to s 112(2) in the first place. Treating that same fact as a further aggravating feature at the sentencing stage amounted to double-counting an element already built into the offence.
The Court accepted the sentencing judge's assessment that the offence fell at the mid-range of gravity, and found no basis to depart from the standard non-parole period on that ground alone. However, taking the 20% guilty plea discount and then reducing the non-parole period by nine months to give effect to the special circumstances finding, the Court arrived at a non-parole period of three years and three months with a balance of term of two years and one month, for a total sentence of five years and four months.
Orders Made
- Leave to appeal granted
- Appeal allowed; sentence imposed in the District Court quashed
- In lieu of the quashed sentence, the applicant was sentenced to a non-parole period of three years and three months commencing 2 April 2004 and expiring 1 July 2007, and a balance of term of two years and one month, expiring 1 August 2009
Key Takeaways
- The standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 is a statutory benchmark referable to a mid-range offence sentenced after a trial; where a judge finds the offence is at the mid-range, that period must be adjusted to reflect a guilty plea, not simply adopted as a starting point and left unreduced.
- A finding of special circumstances carries no weight if it is not actually reflected in the ratio between the non-parole period and the balance of term; the Court of Criminal Appeal treated the imposition of a balance of term nearly double the standard ratio as demonstrating that the finding had been made but not applied.
- Under the standard non-parole period regime, the correct sequence involves first identifying the appropriate non-parole period by reference to the statutory benchmark, then applying the guilty plea discount to that figure, and then adjusting the balance of term if special circumstances have been found.
- Where a statutory provision already incorporates a specific circumstance (here, "in company") as the element that attracts the aggravated offence and its higher maximum, relying on that same circumstance as a further aggravating factor at sentence constitutes an error of double-counting.
- In re-sentencing, the Court reduced the total sentence from eight years to five years and four months, treating the original head sentence as manifestly excessive given the errors identified in the construction of both the non-parole period and the balance of term.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 4, 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, Part 4 Division 1A, s 54A(2), s 54B
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Probation and Parole (Serious Offences) Amendment Act 1987 (NSW), ss 5, 20A
- Sentencing Act 1989 (NSW), s 5
Cases:
- R v Moffitt (1990) 20 NSWLR 114
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Regina v Way [2004] NSWCCA 131; 60 NSWLR 168