Citation: Regina v Wilson [2005] NSWCCA 414
Court: New South Wales Court of Criminal Appeal
Date: 30 November 2005
Judge(s): Whealy J, Studdert J, Howie J
Background
The respondent, a professional property valuer, was convicted by a jury of using a copy of a false instrument, an offence carrying a maximum penalty of ten years imprisonment under the Crimes Act 1900. The conviction arose from his attaching a false document to a property valuation, purporting to certify he held professional indemnity insurance when his cover had in fact lapsed. The lender relied on that certificate and ultimately lost approximately $250,000, though the sentencing judge found the respondent was not party to the wider fraud involving a fictitious property owner and made no finding that he had knowledge of that fraud.
At sentencing in the District Court, the respondent presented a strong subjective case. He was 54 years old, in a stable relationship, and suffered from chronic pancreatitis aggravated by alcohol use, resulting in three hospitalisations since 2002. Medical evidence suggested he had become reliant on a self-medication regime, and the sentencing judge noted he would face particular difficulties in custody as a first-time prisoner. There was also evidence that the respondent had assisted authorities in relation to co-offenders in earlier proceedings.
The District Court imposed a three-year suspended sentence under section 12 of the Crimes (Sentencing Procedure) Act 1999, later corrected mid-hearing to two years after the Crown pointed out that section only permits suspension for a maximum of two years. The Crown appealed, contending that the sentencing process was legally flawed and the sentence was manifestly inadequate.
Legal Issues
- Whether the sentencing judge erred in law by deciding to suspend the sentence before first determining the appropriate length of the sentence independently of whether suspension was warranted (following the approach in R v Zamagias)
- Whether the sentencing judge further erred by failing to fix a non-parole period as required by the then-applicable section 44 of the Crimes (Sentencing Procedure) Act 1999
- Whether the resulting sentence of two years fully suspended was, in any event, manifestly inadequate given the objective seriousness of the offence and the aggravating circumstance of it being committed while the respondent was on bail
Decision
The Court of Criminal Appeal found, without real controversy, that the sentencing judge had committed a clear legal error by approaching the exercise in the wrong order: deciding to impose a suspended sentence before determining what term of imprisonment was otherwise appropriate. The respondent conceded that the sentencing process had miscarried in some respect, though he argued the ultimate outcome of a two-year suspended sentence remained within the available discretion.
The Court rejected that argument and held the sentence was manifestly inadequate. Whealy J reasoned that the sentencing judge had given excessive weight to the respondent's subjective circumstances at the expense of the objective gravity of the offence. The offence was a serious one, and it was significantly aggravated by the fact that it was committed while the respondent was on conditional bail awaiting sentence for two similar offences involving false statements.
The Court held that a sentence of full-time custody should have been imposed in the District Court. However, given that more than four months had passed since sentencing, during which the respondent had remained at liberty on the suspended sentence and a good behaviour bond, imposing full-time custody at the point of the appeal would have been disproportionately harsh. The double jeopardy principle, which recognises that an offender facing a second sentencing after a successful Crown appeal should receive some discount, was applied.
Whealy J (with Studdert J and Howie J agreeing) resentenced the respondent to two years imprisonment with a non-parole period of twelve months. Given that this was the respondent's first period in custody and his health was poor, the Court found special circumstances justifying a departure from the standard ratio between the non-parole and balance of sentence. The sentence was ordered to be served by way of periodic detention rather than full-time custody.
Orders Made
- The Crown appeal was allowed and the District Court sentence was quashed
- The respondent was resentenced to imprisonment for two years with a non-parole period of twelve months
- The sentence is to be served by way of periodic detention, commencing Friday 9 December 2005
- The respondent was directed to report to the officer-in-charge of Parramatta Periodic Detention Centre by 4pm on 9 December 2005
- The non-parole period was set to expire on 8 December 2006, at which point the respondent is to be released to parole
Key Takeaways
- A sentencing court commits a legal error if it decides to suspend a sentence before independently determining the appropriate length of imprisonment: the correct sequence requires the term to be fixed first, and only then for the court to consider whether suspension is warranted.
- Where a sentence is suspended under the Crimes (Sentencing Procedure) Act 1999, the maximum permissible period of suspension is two years; the District Court's initial three-year suspended sentence exceeded that limit.
- Committing an offence while on conditional bail awaiting sentence for similar offences is a significant aggravating factor that must be given substantial weight in the sentencing exercise, even where the offender presents compelling subjective circumstances.
- The double jeopardy principle operates in Crown appeals to moderate the sentence that would otherwise have been appropriate, reflecting the additional burden on an offender of being resentenced after a period of liberty spent under the uncertainty of an appeal.
- Special circumstances justifying a reduction in the non-parole period below the standard proportion can be established by a combination of first-time custody and poor health.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 301(2) (using a copy of a false instrument)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (suspended sentences) and the then-applicable s 44 (non-parole periods)
Cases:
- R v Zamagias [2002] NSWCCA 17 (correct sequencing of the sentencing exercise where suspension is considered)
- R v Pantano (1990) 49 A Crim R 328
- R v Falzon & Pullen (unreported, NSWCCA, 20 February 1992)