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Court of Criminal Appeal 16 March 2006

Skondin v R

[2006] NSWCCA 59

Assault & violenceTheft & property
ARMED ROBBERY PLEA OF GUILTY MALICIOUS WOUNDING CONVICTION FOLLOWING TRIAL BY JURY PAROLE NEVER REVOKED PRINCIPLE OF TOTALITY

Citation: Skondin v R [2006] NSWCCA 59
Court: New South Wales Court of Criminal Appeal
Date: 16 March 2006
Judge(s): Spigelman CJ, Simpson J, Adams J

Background

The applicant pleaded guilty to armed robbery and was separately convicted by jury of malicious wounding. The District Court sentenced him to six years imprisonment (with a three-year non-parole period) for the armed robbery, commencing 17 October 2003. That sentence was made partially cumulative, by one year, upon a fixed three-year sentence for the malicious wounding, which had commenced on 17 October 2002.

After sentencing, the Court of Criminal Appeal quashed the malicious wounding conviction, declined to order a retrial, and entered a verdict of not guilty. The malicious wounding sentence was also quashed. By that point, the full term of that sentence had already been served.

The applicant then sought leave to appeal against his armed robbery sentence on the narrow basis that, because the sentence to which it was made cumulative had been quashed, the commencement date needed to be adjusted to reflect the time he had already spent in custody.

  • Whether the commencement date of the armed robbery sentence should be adjusted following the quashing of the malicious wounding conviction and sentence upon which it was made partially cumulative.
  • Whether any part of the applicant's pre-sentence custody should be treated as referable to an earlier 2002 parole sentence, on the basis that parole could have been revoked following his arrest.
  • Whether the Court should exercise its power under s 59 of the Crimes (Sentencing Procedure) Act 1999 to vary the commencement date of the armed robbery sentence.

Decision

Simpson J (with whom Spigelman CJ and Adams J agreed) identified the central issue as narrow: adjusting the commencement date of the armed robbery sentence to account for the collapse of the malicious wounding conviction. No party contended that the length of the armed robbery sentence was excessive or otherwise infected by error.

The Crown argued against any backdating, suggesting the court should structure the sentence so the applicant effectively served time attributable to the malicious wounding offence, despite his acquittal. The Court rejected this firmly. Simpson J held it would be a fundamental departure from the principles of criminal justice to punish a person for an offence of which he had been acquitted, and that the applicant was entitled to be presumed innocent of the malicious wounding charge.

The Crown also argued, in the alternative, that the applicant's custody from 17 October 2002 to 27 March 2003 should be treated as referable to an earlier parole sentence, on the basis that his parole could have been revoked after his arrest. The Court rejected this too. The Parole Board never revoked the parole, and it was not the function of the Court of Criminal Appeal to step into that role and deem the parole order to have been revoked. The applicant's custody during that period was properly referable only to the armed robbery and malicious wounding charges.

The Court was careful to preserve the sentencing judge's discretion as to the length of sentence, intervening only to the extent necessary to regularise the commencement date in light of the changed circumstances. Backdating the sentence to 17 October 2002 (the date the applicant was first taken into custody on these charges) achieved this without disturbing the term or structure of the sentence itself.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed, to the extent only that the armed robbery sentence is to commence on 17 October 2002, with the non-parole period expiring on 16 October 2005, and the total sentence expiring on 16 October 2008.

Key Takeaways

  • It is a fundamental principle of criminal justice that a person cannot be punished for an offence of which they have been acquitted, and a court will not structure a sentence so as to achieve that outcome indirectly.
  • Where a conviction is quashed and a verdict of not guilty entered, any sentence imposed for that offence falls away, and any sentence made cumulative upon it may require adjustment to reflect the time already served.
  • The revocation of a parole order is a function committed to the Parole Board under the Crimes (Administration of Sentences) Act 1999. A court cannot treat parole as having been revoked simply because revocation would have been open as a matter of fact.
  • The primary sentencing discretion lies with the first instance judge, and an appellate court intervenes in the commencement date of a sentence only to the extent necessary to correct the effect of changed circumstances, not to re-exercise the sentencing task afresh.
  • Committing an armed robbery while subject to a parole order was treated as an aggravating feature in the original sentencing, and no challenge was raised to that approach on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59

Cases:
- Callaghan v R [2006] NSWCCA 58