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Court of Criminal Appeal 28 June 2005

Regina v Nasher

[2005] NSWCCA 238

Assault & violenceTheft & property
CRIMINAL LAW AND PROCEDURE SENTENCE AMBIGUITY AS TO WHETHER PRE SENTENCE CUSTODY TAKEN INTO ACCOUNT PLEA OF GUILTY ON SCHEDULED TRIAL DATE

Citation: Regina v Nasher [2005] NSWCCA 238
Court: NSW Court of Criminal Appeal
Date: 28 June 2005
Judge(s): Grove J, Hoeben J, Hall J

Background

The appellant was convicted on his guilty plea of robbery whilst inflicting grievous bodily harm, an offence carrying a maximum penalty of 25 years imprisonment. The offence occurred in November 2002, when the appellant and three associates robbed an acquaintance at Glebe, inflicting jaw fractures requiring surgical pinning. The appellant was 18 years old at the time.

The sentencing judge in the District Court at Campbelltown imposed a sentence with a non-parole period of three years commencing 30 June 2004, with a total term of six years. The sentencing judge described the applicant's subjective circumstances as a "powerful subjective case" and applied an 18 percent reduction to reflect the utilitarian value of his guilty plea, which was entered on the scheduled first day of trial.

The appellant applied to the Court of Criminal Appeal for leave to appeal against the severity of the sentence, raising two grounds: failure to demonstrably account for pre-sentence custody, and error in how the subjective case was treated.

  • Whether the sentencing judge had demonstrably taken into account the appellant's pre-sentence custody, including two separate periods totalling approximately 102 days
  • Whether the sentencing judge erred in her treatment of the appellant's subjective circumstances, including an incorrect reference to juvenile offences for which no findings of guilt had been recorded

Decision

On ground 2 (pre-sentence custody), the Court found the sentencing judge's treatment was ambiguous. The judge dated the sentence from 30 June 2004 and stated in response to counsel's query that she had taken pre-sentence custody into account and adjusted the sentence accordingly. However, it was unclear whether she had both the 52-day pre-bail custody period and the separate 50-day remand period in mind. When combined with the separately identified 18 percent reduction for the late guilty plea, the Court found it impossible to identify what initial sentence had been assessed to produce the final rounded figures of six years total and three years non-parole. Ground 2 was made out.

On ground 1 (subjective case), the Court found no error in the judge's conclusion that full-time custody was required despite the powerful subjective circumstances. However, the Court identified a specific error: the sentencing judge had noted juvenile charges of affray and larceny as part of the appellant's record when, in fact, those charges had been filed in court without any findings of guilt. That erroneous inclusion amounted to error in the treatment of the subjective case.

With resentencing required, the Court considered a combination of relevant factors, including the appellant's age of 18 at the time of the offence, the powerful subjective circumstances (including a history of abuse, family hardship, and psychological distress identified by a psychologist), good prospects of rehabilitation evidenced by affidavit material, and the fact that he was on conditional liberty on bail at the time of the offence. The Court endorsed the finding that the offence required a period of full-time custody, but concluded that a lesser sentence was appropriate in all the circumstances. Special circumstances justifying a departure from the standard relationship between non-parole period and total term were also found.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed; the District Court sentence quashed
  • Appellant resentenced to a non-parole period of two years commencing 19 May 2004 and expiring 18 May 2006, with a total term of four years commencing 19 May 2004
  • Earliest parole eligibility date specified as 18 May 2006

Key Takeaways

  • Where a sentencing judge takes pre-sentence custody into account by adjusting an assessed sentence rather than by backdating the commencement date, ambiguity as to whether all relevant custody periods have been addressed can ground a successful appeal against severity.
  • The combination of an unexplained discount for a late guilty plea and an opaque adjustment for pre-sentence custody created an irreconcilable final sentence: when the reasoning steps cannot be traced through to the rounded final figures, appellate intervention may follow.
  • Erroneous inclusion of uncharged or unproven matters in a recitation of an offender's criminal history constitutes error in the treatment of the subjective case, even where those matters appear only as background context.
  • A guilty plea entered on the scheduled first day of trial carries utilitarian value, but the Court of Criminal Appeal confirmed it attracts a more limited discount than an early plea: here, 18 percent was the figure applied by the sentencing judge without adverse comment from the appellate bench.
  • Under resentencing, good prospects of rehabilitation, youth at the time of the offence, and a powerful subjective case collectively justified a significant reduction in both the non-parole period and total term, even for a serious offence of violence.

Legislation and Cases Referenced

Cases:
- R v Howard [2001] NSWCCA 309
- R v McHugh (1985) 1 NSWLR 588