AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 4 November 2005

R v NEWMAN

[2005] NSWCCA 388

Theft & property

Citation: R v Newman [2005] NSWCCA 388
Court: New South Wales Court of Criminal Appeal
Date: 4 November 2005
Judge(s): Spigelman CJ, Sully J, Hulme J

Background

The applicant, a man with approximately 40 prior convictions for stealing and dishonesty offences, sought leave to appeal sentences imposed by McLoughlin DCJ in the District Court on 20 January 2005. The sentences related to two residential break-and-enter offences committed in Leichhardt in January and November 2002. In the first, the applicant forced entry through a rear door and stole property worth around $1,980. In the second, he entered through a garden window and stole jewellery, a laptop, and other items worth approximately $8,563.

At the time of sentencing for these two offences, the applicant was already in custody serving sentences for three earlier break-and-enter offences committed between November 2001 and March 2003. The sentences imposed by McLoughlin DCJ extended the applicant's overall non-parole period by one year and seven months, resulting in a total non-parole period of five years from 7 March 2003, followed by a balance of term of twelve months.

The applicant did not challenge the length of his total sentence. His complaint was narrower: that the ratio of non-parole period to parole period was disproportionate, and that the parole-eligible period should have been longer at the expense of the non-parole period.

  • Whether the sentencing judge erred by failing to maintain the standard statutory ratio of non-parole period to total sentence (approximately 3:1), without finding special circumstances or providing reasons for departing from it.
  • Whether the Court of Criminal Appeal should intervene to re-sentence where an error is demonstrated but correcting it would require restructuring the sentence in a way not sought by the applicant.
  • Whether remarks made by a judge sitting on a two-judge bench of the Court of Criminal Appeal carry authoritative weight.

Decision

Hulme J (with Spigelman CJ agreeing) held that McLoughlin DCJ had not erred. His Honour's sentencing remarks made clear why he declined to extend the parole period: having backdated the commencement of the new sentences to give the applicant significant concurrency with the sentences already being served, he was unwilling to reduce further the actual additional period of incarceration. Given the applicant's extensive criminal history and recidivism, that approach was described as "perfectly understandable."

Hulme J acknowledged that, in hindsight, it might have been preferable not to backdate the sentence as early as it was, as this would have permitted a longer parole period while maintaining the same effective increase in non-parole time. However, because the applicant himself did not seek an extension of the overall concluding date, and there was no Crown appeal, the Court had no available mechanism to restructure the sentence in that way.

On the question of totality, Hulme J was satisfied that a total non-parole period of five years for five break-and-enter offences, committed by a recidivist with an extraordinary history of leniency from the courts, was entirely appropriate. Considerations of general and personal deterrence, retribution, and community protection all supported sentences of at least that length.

Regarding the citation of remarks from a two-judge bench, Hulme J stated that such remarks are not authoritative and should not be cited, and he characterised observations from the two-judge decision in R v Oliver as contrary to the considered decision in R v Simpson. Sully J agreed with the orders but reserved his position on the strength of that latter statement, declining to characterise the practice as absolute and noting he had not undertaken a detailed comparative analysis of Oliver and Simpson.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's decision to backdate a new sentence to create concurrency with an existing sentence can constitute a legitimate reason for not extending the parole-eligible period, provided the judge's reasoning is apparent from the sentencing remarks.
  • Where an applicant declines to seek an extension of the overall sentence end-date, and there is no Crown appeal, the Court of Criminal Appeal has no available path to restructure the sentence so as to increase the parole period.
  • Remarks made by a judge sitting on a two-judge bench of the Court of Criminal Appeal are not authoritative, and a practice exists (affirmed by Hulme J, though Sully J reserved his position) that such remarks should not be cited in argument.
  • In dismissing the appeal, the Court confirmed that an extensive history of recidivism, combined with prior leniency from the courts, can properly support sentences placing significant weight on deterrence and community protection.
  • No error unfavourable to the applicant was established in the sentencing exercise conducted by McLoughlin DCJ.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6AA(2)

Cases:
- R v Nightingale [2005] NSWCCA 147
- R v Oliver (2005) NSWCCA 6
- R v Simpson (2001) 53 NSWLR 705