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Court of Criminal Appeal 18 April 2007

Quinlan v R

[2007] NSWCCA 109

Sexual offencesAssault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL LARGE NUMBER OF OFFENCES PAROLE PERIOD.

Citation: Quinlan v R [2007] NSWCCA 109
Court: New South Wales Court of Criminal Appeal
Date: 18 April 2007
Judge(s): McClellan CJ at CL, Hoeben J, Hall J

Background

The applicant was convicted of ten offences arising from a single night of offending in Coffs Harbour on 8 December 2004. The offences included multiple counts of sexual intercourse without consent, break and enter with commission of a serious indictable offence, robbery, and several aggravated break, enter and steal offences, committed against multiple victims in the course of what the Court described as a drug-fuelled criminal rampage.

In the District Court, Garling DCJ imposed a complex set of partially concurrent and partially cumulative sentences. The total effect was a non-parole period of 9 years commencing 25 August 2005, with a balance of term of 2 years, producing an aggregate head sentence of 11 years. The sentencing judge found special circumstances based on the applicant's youth and rehabilitation needs, but declined to alter the structure of the sentences when invited to do so after they were passed.

The applicant sought leave to appeal on the basis that the sentencing judge erred in the relationship between the aggregate head sentence and the aggregate non-parole period. The applicant's counsel accepted that if the Court found no lesser sentence could properly have been imposed, the appeal must fail.

  • Whether the sentencing judge erred by producing an aggregate non-parole period that was disproportionately large relative to the aggregate head sentence, in circumstances where special circumstances had been found
  • Whether, where special circumstances are found based on youth and rehabilitation needs, the ratio between the total non-parole period and the total head sentence should necessarily reflect an extended parole period

Decision

The Court granted leave to appeal but dismissed the appeal. Hoeben J (with whom McClellan CJ at CL and Hall J agreed) found that the sentencing judge had been fully aware of the totality principle and the effect of the sentences he imposed. The comparatively short balance of term did not result from any oversight: after passing the sentences, Garling DCJ expressly acknowledged the position in exchanges with counsel but declined to alter the outcome, having concluded that neither a reduction in the non-parole period nor an increase in the balance of term was warranted.

The Court accepted that there is no statutory requirement for the aggregate effect of multiple sentences to produce a balance of term equal to or greater than one-third of the non-parole period. The applicant's submission was that, given the finding of special circumstances, such a ratio should nonetheless have been achieved in this case. The Court did not accept that proposition in the circumstances.

Hoeben J emphasised the very high level of criminality involved, both individually and cumulatively. Even accounting for the applicant's strong subjective case, including his youth, the Court was not persuaded that any lesser sentences could properly have been imposed. Because no lesser sentence was warranted, the single ground of appeal failed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • There is no statutory requirement that the aggregate effect of multiple partially concurrent and partially cumulative sentences produce a balance of term equal to or greater than one-third of the total non-parole period.
  • A finding of special circumstances based on youth and rehabilitation need does not automatically require the sentencing court to achieve a particular ratio between the aggregate non-parole period and the aggregate head sentence.
  • Where a sentencing judge is demonstrably aware of the totality principle and the structural effect of the sentences imposed, the absence of a more favourable ratio will not in itself constitute error.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an appellate challenge to the non-parole period ratio must ultimately establish that a lesser overall sentence should have been imposed; without that foundation, the ground fails regardless of the ratio.
  • The post-sentence exchange between Garling DCJ and counsel, though not incorporated into the formal remarks on sentence, was properly taken into account by the Court of Criminal Appeal as evidence that the sentencing judge had turned his mind to the relevant principle.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 61L, 61N, 94, 112(1), 112(2), 122(2)

Cases:
- R v Way (2004) 60 NSWLR 168