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7
Court of Criminal Appeal 3 November 2006

Fairbairn v Regina

[2006] NSWCCA 337

Also reported as (2006) 165 A Crim R 434
Assault & violenceTheft & propertyFirearms & weapons

Citation: Fairbairn v Regina [2006] NSWCCA 337
Court: NSW Court of Criminal Appeal
Date: 3 November 2006
Judge(s): Basten JA, Hidden J, Bell J

Background

The applicant pleaded guilty in the District Court to two counts of assault with intent to rob whilst armed with an offensive weapon (a knife), contrary to s 97(1) of the Crimes Act 1900. The offences arose from a single incident at a cake shop in Avalon in March 2005, during which the applicant threatened a teenage shop assistant and her employer with a knife, and then turned the knife on a customer who entered the shop during the robbery. He was apprehended shortly afterwards and found to be carrying two knives.

At first instance, the sentencing judge imposed an aggregate sentence of four and a half years' imprisonment with an effective non-parole period of three years, structuring the sentences so that count 2 was significantly accumulated upon count 1. Several additional offences, including a demand for money and possession of two knives in public, were taken into account on a Form 1 (a document that allows related but uncharged or unindicted offences to be considered at sentencing without separate punishment).

The applicant sought leave to appeal to the Court of Criminal Appeal on the ground that the sentences were manifestly excessive and on the additional ground that the sentencing process was procedurally unfair.

  • Whether the sentences imposed were manifestly excessive in all the circumstances
  • Whether the sentencing judge's indication to Crown counsel that he was not considering any accumulation of sentences, followed by the imposition of significant accumulation without warning, constituted procedural unfairness
  • Whether the Crown's conduct below precluded it from inviting the Court of Criminal Appeal, on resentencing, to impose partly cumulative sentences
  • Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 justifying departure from the standard non-parole period ratio
  • Whether the sentence should be suspended pursuant to s 12(1) of the Crimes (Sentencing Procedure) Act 1999

Decision

Bell J, with whom Hidden J and Basten JA agreed, found that ground 3 of the appeal (procedural unfairness) was made out. The sentencing judge had indicated to Crown counsel that he was not considering accumulation, a course expressly accepted by the Crown. The judge then imposed significant accumulation without warning to the offender. This departed from established principles of procedural fairness in sentencing, as reflected in Parker v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 282.

Basten JA added that, because of the Crown's conduct below, there was an element of double jeopardy in the Crown then inviting the Court of Criminal Appeal to impose a partly cumulative sentence on resentencing. This was not a case of the Crown supporting a sentencing result for different reasons; it was an invitation to take an approach that had not been open to the sentencing judge, in part because of the Crown's own acceptance of the non-accumulation approach. For those reasons, Basten JA declined to accumulate any part of the sentence on count 2 on resentencing.

Bell J considered that, given the second offence arose spontaneously in the course of the first, it was appropriate to direct both sentences be served concurrently. Her Honour also found that the objective seriousness of the offences, particularly count 1, made it necessary for the applicant to serve the non-parole period in full-time custody, and declined to suspend the sentence. Special circumstances under s 44(2) were found to exist, reflecting the applicant's health and the fact that this was his first experience of imprisonment, though the adjustment to the sentence ratio was modest given the gravity of the offending.

Orders Made

  • Leave to appeal granted
  • Appeal allowed and District Court sentences quashed
  • Count 1 (taking into account Form 1 offences): non-parole period of 15 months from 23 March 2006, expiring 22 June 2007, with release on parole directed at expiration; balance of term of seven months from 23 June 2007, expiring 22 January 2008
  • Count 2: fixed term of 13 months from 23 March 2006, expiring 22 April 2007 (served concurrently with count 1)

Key Takeaways

  • Procedural fairness in sentencing requires that an offender be given an opportunity to address any approach the sentencing judge is considering, including accumulation of sentences. Where a judge signals to the Crown that accumulation will not be imposed, and the Crown accepts that course, imposing significant accumulation without warning constitutes a denial of procedural fairness.
  • The Court of Criminal Appeal confirmed that the principle in Parker v DPP (NSW) applies to prevent a sentencing judge from taking a substantially different course from that indicated, without giving the parties an opportunity to be heard.
  • Where the Crown accepts a particular approach at first instance, and that acceptance contributes to the procedural unfairness that vitiates the original sentence, a double jeopardy consideration may arise if the Crown then invites a different and more adverse approach on resentencing.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, special circumstances can be found where an offender faces their first period of imprisonment and has significant health issues, though the practical effect on the sentence structure may be limited where the total sentence is short.
  • Concurrent sentences may be appropriate where multiple offences arise spontaneously out of a single continuous transaction, even where more than one victim is involved.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1), s 99(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12(1), s 44(2)
- Criminal Appeal Act 1912 (NSW)
- Summary Offences Act 1988 (NSW), s 11C(1)(a)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases:
- Parker v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 282
- Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146
- R v Engert (1995) 84 A Crim R 67
- R v Hammoud (2000) 118 A Crim R 66
- R v Henry (1999) 46 NSWLR 346
- R v House [2005] NSWCCA 88
- R v Ibrahimi [2005] NSWCCA 153
- R v Letteri (NSWCCA, unreported, 18 March 1992)
- R v McNamara [2005] NSWCCA 195
- R v Smith (1987) 44 SASR 587
- R v Street [2005] NSWCCA 139
- R v Suaalii [2005] NSWCCA 206
- R v Tadrosse [2005] NSWCCA 145