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Court of Criminal Appeal 4 December 2006

Jones v Regina

[2006] NSWCCA 385

Assault & violenceFraud & dishonestyPublic order & justice offences
CRIMINAL LAW: WHETHER SENTENCES MANIFESTLY EXCESSIVE

Citation: Jones v Regina [2006] NSWCCA 385
Court: New South Wales Court of Criminal Appeal
Date: 4 December 2006
Judge(s): McClellan CJ at CL, Hidden J, Hislop J

Background

The applicant was before the District Court in September 2002 to be sentenced for defrauding the Commonwealth. When the sentencing judge signalled a full-time custodial sentence was coming, she left the courtroom claiming she needed insulin and did not return, giving rise to a charge of escaping from lawful custody.

Arrest warrants were not executed until November 2002, when three federal agents attended her home. During the arrest she swung a piece of timber at an agent's head; he raised his hands in defence and was struck on his left little finger. This produced a charge of causing harm to a Commonwealth public official. She also physically struggled with another agent, leading to a charge of hindering a Commonwealth public official.

The proceedings were protracted, and the applicant failed to appear on multiple occasions. She was ultimately arrested in August 2005 and remained in custody from that date. She was sentenced in June 2006 and sought leave to appeal, arguing the sentences were manifestly excessive and that the recognizance release order on the second charge was set at an unduly high proportion of the head sentence.

  • Whether the sentence for escaping from lawful custody (12 months) was manifestly excessive, having regard to the spontaneous nature of the escape and the availability of summary disposal
  • Whether the sentencing judge erred by effectively double-punishing the applicant for the escape through reference to her conduct at the time of recapture
  • Whether the sentence for causing harm to a Commonwealth public official (18 months) was manifestly excessive
  • Whether the recognizance release order on the harm charge, set at 73 per cent of the head sentence, was an unduly high proportion relative to the normal range for Commonwealth offences

Decision

On the escape charge, the applicant argued the sentencing judge failed to take into account that the escape was spontaneous and that the offence could have been dealt with summarily (attracting a maximum of 12 months). The Court acknowledged those matters, but found that the overall sentence of 12 months was not manifestly excessive when assessed against the circumstances, including the applicant's criminal history and poor prospects of rehabilitation. The Court was not persuaded that the sentencing judge had impermissibly double-counted the recapture conduct when fixing the escape sentence.

On the charge of causing harm to a Commonwealth public official, the Court noted the very limited sentencing precedent available: only two comparable cases could be found, and no clear sentencing range could be extracted from them. Measured against a statutory maximum of 13 years, a sentence of 18 months could not be said to be manifestly excessive, even accepting that the agent suffered no significant injury and that the applicant's psychological difficulties warranted some leniency.

On the question of the recognizance release order, the Court accepted that 73 per cent of the head sentence is a high proportion, and that the normal range for Commonwealth offences sits at approximately 60 to 66.67 per cent. However, reducing the order to bring it within that range would have amounted to an adjustment of little more than one month. The Court applied the well-established principle against "tinkering" with sentences and declined to intervene for such a minor difference.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence cannot be shown to be manifestly excessive simply because a lesser sentence might have been open to the sentencing judge.
  • Where sentencing precedent for a particular Commonwealth offence is sparse, an appellate court has no established range against which to measure a ground of manifest excess, making that ground difficult to sustain.
  • The principle against "tinkering" with sentences applies even where a recognizance release order falls outside the normal proportion range, provided the adjustment required would be minor (here, just over one month).
  • For Commonwealth offences, the normal proportion of a non-parole period or recognizance release order to the head sentence falls in the range of approximately 60 to 66.67 per cent, as confirmed in R v Bernier (1998) 102 A Crim R 44.
  • A sentencing judge's failure to expressly mention a mitigating factor such as the spontaneous nature of an offence does not automatically establish error, particularly where the overall sentence falls within an acceptable range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 47, 4J, 48A
- Criminal Code 1995 (Cth), ss 147.1, 149.1
- Correctional Centres Act 1952 (NSW), s 34

Cases:
- R v Robinson [2000] NSWCCA 182
- R v Crombie [1999] NSWCCA 297
- Merzahi v Wilkinson [2002] WASCA 124
- R v Paterson [2004] WASCA 63
- R v Bernier (1998) 102 A Crim R 44