Citation: R v Ryan; R v McPherson [2006] NSWCCA 394
Court: New South Wales Court of Criminal Appeal
Date: 11 December 2006
Judges: Barr J, Latham J, Adams J
Background
On 18 December 2005, two respondents jointly attacked a victim, causing grievous bodily harm. One respondent used a cricket bat in the assault; the other was in possession of a knife at the time. The attack was two-on-one. The victim sustained fractures to the zygomatic arch and the humerus, though he was discharged from hospital within 24 hours.
Both respondents pleaded guilty in the Local Court and were committed for sentence in the District Court. Each had spent approximately one month in pre-sentence custody. The sentencing judge in the District Court imposed sentences of 20 months' imprisonment on each respondent, but wholly suspended both sentences under s 12 of the Crimes (Sentencing Procedure) Act 1999.
The Crown appealed to the Court of Criminal Appeal, contending that the suspended sentences were the product of legal error and were manifestly inadequate given the objective seriousness of the offending.
Legal Issues
- Whether the sentencing judge properly applied the mandatory two-step sentencing process: first determining that imprisonment was the only appropriate sentence, then determining the length of that sentence, before considering suspension
- Whether the sentencing judge erred by working backwards from the two-year statutory cap on suspended sentences, rather than first fixing an appropriate term independently of that cap
- Whether the suspended sentences were so inadequate as to constitute error requiring intervention by the appellate court
- Whether, notwithstanding error, this Court should decline to intervene given the respondents' rehabilitation and subjective circumstances
Decision
Barr and Latham JJ identified a clear procedural error. The sentencing judge was required first to satisfy himself that no penalty other than imprisonment was appropriate under s 5(1) of the Crimes (Sentencing Procedure) Act, and then to determine the appropriate length of the sentence without reference to whether or how it would be served. Only after fixing the term could the question of suspension arise. The sentencing judge did not follow this sequence.
The majority also found that the judge's remarks disclosed an intention to impose a suspended sentence of more than two years had the legislation permitted it. This indicated that the judge had allowed the statutory cap on suspension to drive the length of the sentence downward, rather than fixing an appropriate term first and then separately considering whether suspension was available. That approach was erroneous.
Adams J agreed that error was established and that the sentences were inadequate for offences of this seriousness. He noted the attack involved Ryan approaching after a period of reflection, and McPherson voluntarily joining to assault a victim who was already on the ground. Adams J found the respondents' overall culpability to be broadly comparable, and that the same sentence should apply to both. He allowed a one-month discount for pre-sentence custody, applied a 25% utilitarian discount for early guilty pleas, and found special circumstances justifying a departure from the standard non-parole ratio, given that each respondent would be serving their first term of imprisonment and required extended post-release supervision to support rehabilitation.
All three judges agreed that no sentence short of full-time custody was appropriate on the facts, and that the minimum appropriate sentences were a non-parole period of six months followed by a balance of term of nine months.
Orders Made
- The order suspending each respondent's sentence is set aside
- Each sentence is quashed
- Each respondent is sentenced to a non-parole period of six months commencing 11 December 2006 and ending 10 June 2007, with a balance of term of nine months commencing 11 June 2007 and ending 10 March 2008
- Each respondent is to be released on parole at the expiration of their non-parole period
Key Takeaways
- The two-step sentencing process is mandatory: the sentencing court must first determine that imprisonment is the only appropriate option, then fix the length of the term independently of how or whether it will be served, before turning to questions such as suspension.
- A sentencing judge must not work backwards from the two-year statutory cap on suspended sentences under s 12 of the Crimes (Sentencing Procedure) Act to arrive at a term that qualifies for suspension; the appropriate term must be fixed first, without regard to that cap.
- Where a sentencing judge's remarks reveal an intention to impose a longer suspended sentence but for statutory limits, this discloses a failure to apply the correct methodology and constitutes error.
- Alcohol as a disinhibiting factor does not automatically operate to mitigate the objective seriousness of violent offending or entitle an offender to leniency, as the Court of Criminal Appeal confirmed here.
- Special circumstances justifying a departure from the standard non-parole period ratio may be established where an offender is serving their first term of imprisonment and requires extended supervision to consolidate rehabilitation, though this remains a discretionary assessment on the facts.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 35(2), 58, 60(1), 114
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 12, 44
Cases:
- R v Foster [2001] NSWCCA 215
- R v Zamagias [2002] NSWCCA 17
- R v Blackman and Walters [2001] NSWCCA 121
- R v JCE (2000) 120 A Crim R 18
- R v T (Court of Criminal Appeal, NSW, 19 June 1995, unreported)
- R v Percy [1975] Tas SR 62
- Stevens v Giersh (1976) 14 SASR 81
- R v Jurisic (1998) 45 NSWLR 209
- R v Wegener [1999] NSWCCA 405
- Dinsdale v The Queen (2000) 202 CLR 321
- R v LRS [2001] NSWCCA 338
- R v Geddes (1936) 36 SR(NSW) 554
- R v Rushby [1977] 1 NSWLR 594
- Saleib [2005] NSWCCA 85
- Douar v Regina [2005] NSWCCA 455
- R v Saldaneri [2001] NSWCCA 480