Citation: Regina v Jana Malik [2005] NSWCCA 334
Court: New South Wales Court of Criminal Appeal
Date: 12 September 2005
Judge(s): Mason P, Grove J, Buddin J
Background
The applicant pleaded guilty in the District Court to two counts of breaking and entering a dwelling house and stealing valuable personal property, contrary to s 112(1) of the Crimes Act. Each offence carried a maximum penalty of 14 years imprisonment. She was detected through fingerprint and DNA evidence.
The sentencing judge, Armitage DCJ, imposed partially cumulative sentences resulting in an aggregate head sentence of 18 months with an aggregate non-parole period of 15 months. The ratio of the non-parole period to the head sentence therefore exceeded 75 percent. The applicant had a long history of heroin addiction and prior terms of full-time imprisonment, and her record offered nothing in mitigation.
On appeal to the Court of Criminal Appeal, the applicant argued that the cumulation of sentences had produced an aggregate non-parole period that was unlawfully greater than three-quarters of the total head sentence under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.
Legal Issues
- Whether the aggregate non-parole period, exceeding 75 percent of the aggregate head sentence, constituted a legal error under s 44(2) of the Crimes (Sentencing Procedure) Act 1999
- Whether the sentencing judge had arrived at that ratio inadvertently, such that resentencing was warranted
- Whether any reason in law existed to impose a lesser sentence than that imposed
Decision
Mason P, with Grove J and Buddin J agreeing, dismissed the appeal. The Court found that s 44(2) of the Crimes (Sentencing Procedure) Act 1999 does not prohibit a non-parole period exceeding three-quarters of the sentence term, nor does it require a sentencing judge to give reasons for departing from that ratio. The provision therefore did not, of itself, render the sentence erroneous.
The Court was not persuaded that the sentencing judge had set the aggregate non-parole period inadvertently. On the contrary, Mason P was satisfied that Armitage DCJ had deliberately structured the sentences with full awareness that the balance remaining after the non-parole period would be only three months. Counsel for both parties had been invited to comment and had declined to do so.
The Court also found that the sentencing judge had appropriately weighed the objective seriousness of the offences, the totality of the applicant's criminality, her subjective circumstances, and the discount applied for the guilty plea and assistance to authorities. The applicant's failure to complete rehabilitation programs supported the finding that no special circumstances existed. No lesser sentence was warranted in law.
Orders Made
- Leave to appeal granted
- Appeal against sentence dismissed
Key Takeaways
- Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 does not prohibit an aggregate non-parole period exceeding three-quarters of the aggregate head sentence, and does not require reasons when that ratio is exceeded.
- No error arises where a sentencing judge deliberately structures cumulative sentences to produce a non-parole period above the 75 percent ratio, with full awareness of that outcome.
- In dismissing the appeal, the Court confirmed that the relevant question is whether the departure from the standard ratio was inadvertent, not merely whether it occurred.
- A failure to complete rehabilitation programs can support a finding that no special circumstances exist, leaving the standard one-quarter parole remainder intact or reduced further.
- The Court of Criminal Appeal will not intervene to impose a lesser sentence simply because the non-parole ratio exceeds 75 percent if the sentencing discretion was properly exercised.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 44(2)
- Crimes Act 1900 (NSW), s 112(1)
Cases: No cases were cited in the judgment.