Citation: R v Barker, R v Gibson [2006] NSWCCA 20
Court: NSW Court of Criminal Appeal
Date: 15 February 2006
Judges: Basten JA, Howie J, Hall J
Background
Two respondents, Barker and Gibson, pleaded guilty in the District Court to aggravated car jacking contrary to s 154C(2) of the Crimes Act 1900, an offence carrying a maximum of 14 years imprisonment and a standard non-parole period of five years. The offences arose from a connected series of events in the early hours of 29 July 2003, involving the theft of two motor vehicles and ultimately the violent taking of a third vehicle from a lone tradesperson in South Penrith. Each respondent also asked the court to take into account two further offences of being carried in a conveyance without the owner's consent.
At the time of sentencing in September 2005, each respondent was already serving sentences for unrelated offences imposed by different District Court judges. The sentencing judge, English DCJ, backdated the car jacking sentences so they ran concurrently or partly concurrently with those existing sentences. The practical effect was that each respondent's overall non-parole period was extended by only four months.
The Crown appealed, arguing that the sentences were manifestly inadequate and that the backdating approach failed to reflect the objective seriousness of the car jacking offence or the need for deterrence.
Legal Issues
- Whether the sentences imposed for the aggravated car jacking were manifestly inadequate having regard to the objective seriousness of the offence
- Whether the sentencing judge erred in backdating the commencement dates so that the new sentences were substantially concurrent with existing sentences for entirely unrelated offences
- Whether a delay between the commission of the offence and the respondents' arrest and charge was a mitigating factor that justified greater concurrency
- Whether the parity principle applied between the two respondents, and what bearing it had on the resentencing exercise
Decision
Howie J (with Basten JA and Hall J agreeing) held that the sentences were manifestly inadequate. The car jacking was a serious offence, committed violently against a lone victim in the early morning. The respondents had relevant criminal histories and the objective circumstances of the offence did not permit significant mitigation.
On the backdating issue, Howie J rejected the proposition that a delay between an offence and arrest could justify making a sentence for that offence substantially concurrent with a later sentence imposed for unrelated offences. The car jacking and the offences dealt with by the earlier sentencing judges were entirely distinct in character and criminality. The earlier sentences could not be treated as having encompassed the car jacking offending, and the principle of totality did not operate so as to effectively absorb the penalty for a serious separate offence.
The court also addressed whether the delay before charge was a mitigating factor in its own right. It accepted that some delay may be relevant to subjective circumstances, but found that in these cases the delay did not warrant the degree of concurrency applied by the sentencing judge.
On parity, Howie J accepted that the principle from Postiglione v The Queen (1997) 189 CLR 295 could apply. Although he would otherwise have required Barker to serve an additional 12 months before parole eligibility, he reduced that to nine months to match Gibson's adjusted position, given the proximity between Gibson's armed robbery and the car jacking offence provided some justification for a degree of concurrency in Gibson's case.
Orders Made
- Crown appeal in respect of Barker allowed; sentence quashed as to commencement date; sentence to commence 4 August 2005, with non-parole period expiring 5 February 2007
- Crown appeal in respect of Gibson allowed; sentence quashed as to commencement date; sentence to commence 3 November 2004, with non-parole period expiring 2 May 2006
Key Takeaways
- A sentence for a serious offence cannot be rendered largely notional by backdating it to run concurrently with existing sentences imposed for entirely unrelated offences; doing so may produce a result that is manifestly inadequate.
- Where offences are distinct in character and criminality, the totality principle does not operate to absorb the penalty for the later-sentenced offence into an earlier unrelated sentence.
- Delay between the commission of an offence and arrest does not automatically justify substantial concurrency with an unrelated sentence; its mitigating weight depends on the circumstances.
- The parity principle from Postiglione v The Queen was applied to align the additional minimum custodial period between two co-offenders, even though their individual custodial circumstances differed.
- In allowing the Crown appeals, the Court of Criminal Appeal resentenced both respondents by adjusting the commencement dates of their sentences rather than disturbing the head sentence or non-parole period length as originally fixed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 154A(b), 154C(2)
- Criminal Procedure Act 1986 (NSW)
- Mental Health (Criminal Procedure) Act (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 54B(4)
Cases:
- R v Todd [1982] 2 NSWLR 517
- Fernando (1992) 76 A Crim R 58
- Postiglione v The Queen (1997) 189 CLR 295
- R v Postiglione (1997) 98 A Crim R 134
- Mill v The Queen (1988) 166 CLR 59
- Makarian v The Queen (2005) 79 ALJR 1048
- R v Way (2004) 60 NSWLR 168
- R v Mills [2005] NSWCCA 175
- R v Hammoud [2000] NSWCCA 540
- R v Drew [2005] NSWCCA 50
- R v Wall [2002] NSWCCA 42
- R v Kay [2004] NSWCCA 130
- R v Hathaway [2005] NSWCCA 368
- R v Shorten [2005] NSWCCA 106
- R v Bragias (1997) 92 A Crim R 330
- R v Carter [1999] NSWCCA 376