Citation: WRIGHT v R [2006] NSWCCA 122
Court: NSW Court of Criminal Appeal
Date: 13 April 2006
Judge(s): McClellan CJ at CL, Rothman J (dissenting), Smart AJ
Background
The appellant pleaded guilty in the Campbelltown District Court to six counts of demanding money with menaces with intent to steal, contrary to s 99(1) of the Crimes Act 1900. The offences arose from a sustained campaign of extortion against a former workmate. After the victim reported the appellant's suspected theft at a Woolworths store in Bass Hill, the appellant was dismissed and then systematically extorted the victim over several months in 2003, extracting a total of $8,995.
The extortion involved repeated confrontations in the Woolworths car park and nearby hotel, accompanied by explicit threats of violence, grievous bodily harm, and death. On one occasion, a cousin of the appellant threatened to kill the victim and dismember his body. The appellant also told the victim that nothing would happen to him "unless I authorise it," underscoring the ongoing dominance he exercised over the victim throughout the period.
The sentencing judge imposed an overall effective sentence of three years' imprisonment as a non-parole period, expiring 23 January 2008, with a balance of term of one year expiring 23 January 2009. A 40 per cent discount was applied for the guilty plea and the appellant's offer to assist authorities, and the judge found special circumstances warranting a variation of the statutory ratio between the non-parole period and the total term.
Legal Issues
- Whether the sentencing judge erred by failing to give proper effect to the finding of special circumstances when structuring the sentence
- Whether the overall sentence was manifestly excessive
Decision
On the first ground, the Court examined whether the sentencing judge had adequately reflected the finding of special circumstances in the structure of the sentence. The judge had made the finding of special circumstances based on the appellant's good character and the fact that this would be his first period of custody. The sentences on Counts 4, 5 and 6 individually reflected that finding, with a parole period exceeding one-third of the non-parole period. However, when the accumulated sentences were considered together, the parole period reverted to one-third of the total, and the judge had not expressly addressed the effect of accumulation on the special circumstances finding.
The majority accepted that the accumulation of sentences is itself capable of constituting a special circumstance, but noted that a sentencing judge is not obliged to reduce the sentence on that basis. The judge's failure to expressly address the cumulative effect did not, in the majority's view, amount to a reversible error in the circumstances of this case.
On the question of manifest excess, the majority found the sentences were in fact very lenient given the seriousness of the conduct. The majority observed that Count 6 alone had seven further offences of a similar kind taken into account on a Form 1, yet was ordered to run concurrently with Counts 4 and 5. Even accounting for the appellant's favourable subjective circumstances, including the guilty plea and assistance to authorities, the majority held that lesser sentences were not warranted in law. Rothman J dissented but the basis of the dissent is not fully set out in the available text.
Orders Made
- Leave to appeal granted
- Appeal dismissed (by majority, Rothman J dissenting)
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that while the accumulation of sentences can itself constitute a special circumstance, a sentencing judge is not required to reduce the total sentence on that basis alone.
- A finding of special circumstances does not automatically produce a lower sentence; the overall structure of accumulated sentences may legitimately result in the parole period reverting to the standard one-third ratio.
- Where the sentences imposed are, on their face, lenient relative to the objective seriousness of the offending, an appeal on grounds of manifest excess is unlikely to succeed even if technical errors in the treatment of special circumstances are identified.
- The 40 per cent discount applied for a guilty plea and cooperation with authorities was accepted without challenge, indicating the sentencing judge's approach to that component was not in dispute.
- No error was established sufficient to warrant the Court of Criminal Appeal interfering with the sentence, notwithstanding the majority's observation that the sentence on Count 6 was difficult to justify given the number of additional offences taken into account.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 99(1) (demanding money with menaces with intent to steal; maximum penalty 10 years' imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
Cases
- Pearce v The Queen (1998) 194 CLR 610 (High Court; relevant to the approach to accumulation of sentences)
- Attorney-General's Application No 1 of 2002 [2002] NSWCCA 518 (relevant to Form 1 procedure)