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Court of Criminal Appeal 22 July 2005

SWAN v R

[2005] NSWCCA 252

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE CUMULATIVE SENTENCES SPECIAL CIRCUMSTANCES RATIO OF NON APAROLE PERIOD

Citation: R v Swan [2005] NSWCCA 252
Court: Court of Criminal Appeal, New South Wales
Date: 22 July 2005
Judge(s): Grove J, Howie J, Rothman J

Background

The appellant pleaded guilty in the District Court to three offences: one count of break, enter and steal (contrary to s 112(1) of the Crimes Act 1900) and two counts of receiving stolen goods (contrary to s 188 of the Crimes Act 1900). The break-and-enter involved a residential burglary in Gunnedah while the occupants were on holiday. The receiving charges arose from stolen goods found at the appellant's premises during a police search in April 2003.

Gibson ADCJ sentenced the appellant to 30 months for Count 1, with a non-parole period of 22 months, and 21 months each for Counts 2 and 3, with non-parole periods of 16 months. The sentences on Counts 2 and 3 ran concurrently with each other and partly concurrently with Count 1, producing an effective total sentence of 2 years and 9 months with a non-parole period of 2 years and 4 months.

The appellant did not challenge the length of the individual sentences or the extent to which they were made concurrent. The appeal concerned only whether the overall non-parole period was disproportionately long relative to the total term when the cumulative structure of the sentences was taken into account.

  • Whether the overall non-parole period, as a product of cumulative sentencing, inappropriately departed from the 3:1 ratio (non-parole period to balance of sentence) prescribed by s 44 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge had found, or should have found, special circumstances to justify any departure from that statutory ratio
  • Whether the departure from the overall 3:1 ratio was intentional or an oversight resulting from the mechanics of cumulative sentencing

Decision

Gibson ADCJ had expressly applied the s 44 ratio to each individual sentence and had declined to find special circumstances. His stated approach was to maintain a 3:1 relationship between the non-parole period and the balance of term on each count. However, the cumulative effect of the sentences meant that the overall ratio across the aggregate sentence did not reflect that same relationship.

The Court of Criminal Appeal found that the departure from the 3:1 ratio in the overall sentence appeared to be an inadvertent oversight rather than a deliberate decision. Because the sentencing judge had made no express statement of any intention to depart from the ratio overall, the Court proceeded on the basis that the adjustment required to account for cumulative sentencing had simply been omitted by mistake.

Rothman J confirmed the established principle, drawing on R v Simpson (MG) and R v Close, that where a sentence is made cumulative on another, that circumstance can itself constitute "special circumstances" in relation to the later sentence. This allows the court to adjust the non-parole period on the later sentence to preserve the intended statutory relationship across the aggregate term. The resentence achieved the result that Gibson ADCJ had evidently intended.

Orders Made

  • Leave to appeal granted
  • Appeal granted in part
  • Sentences on Counts 2 and 3 quashed insofar as the non-parole period was concerned; in lieu thereof, a non-parole period of 12 months commencing 1 February 2005 and ending 31 January 2006 was imposed
  • The prisoner to be released on parole on 31 January 2006 on the usual conditions

Key Takeaways

  • Section 44 of the Crimes (Sentencing Procedure) Act 1999 operates at the level of each individual sentence, not across an aggregate term; the 3:1 ratio between non-parole period and balance of term applies offence by offence, not globally.
  • Where a sentencing judge applies the statutory ratio to each individual count but makes sentences cumulative, the mechanical interaction of those sentences can produce an overall ratio that departs from the judge's stated intention, without any express finding of special circumstances.
  • Cumulative sentencing can itself constitute special circumstances in relation to a later sentence, permitting adjustment of the non-parole period on that sentence to preserve the intended proportionality across the total term.
  • Where a sentencing court does not expressly state an intention to depart from the statutory ratio in the overall sentence, the Court of Criminal Appeal will presume the departure was inadvertent rather than deliberate.
  • In dismissing most of the appeal, the Court emphasised that neither the individual sentences nor the concurrency arrangements were challenged; the intervention was confined to correcting the non-parole period on Counts 2 and 3 to reflect what the sentencing judge had evidently intended.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Crimes Act 1900 (NSW), ss 112(1), 188
- Criminal Appeals Act 1912 (NSW), s 5(1)(c)

Cases
- R v Simpson (MG) (1992) 61 A Crim R 58
- R v Close (1992) 31 NSWLR 743