Citation: Pattison v Regina [2007] NSWCCA 186
Court: NSW Court of Criminal Appeal
Date: 29 June 2007
Judge(s): McClellan CJ at CL, Hidden J, Price J
Background
The applicant was sentenced in the District Court at Penrith on 8 May 2006 for a series of offences committed across two distinct periods. The earlier group included a break-and-enter of a dwelling at Cranebrook in 2002 and related receiving offences. The later group, from December 2004, included receiving stolen goods, using a false identity document to hire a vehicle, dishonestly obtaining that vehicle by deception, driving it without consent, breaking into a storage shed at Cattai, and larceny.
The applicant had pleaded guilty, including entering early pleas in the Local Court for the 2004 charges. After partial and total accumulation of the individual sentences, the District Court imposed a total effective sentence of seven years' non-parole period, followed by a three-year balance of term, running from 17 November 2004.
The applicant sought leave to appeal against the severity of his sentences, representing himself before the Court of Criminal Appeal.
Legal Issues
- Whether the total effective sentence was manifestly excessive having regard to the principle of totality
- Whether the sentencing judge gave adequate credit for early pleas of guilty entered in the Local Court for charges 7 to 12
- Whether the conditions under which the applicant was serving his sentence on protection warranted any further adjustment to the balance of term
Decision
The Court of Criminal Appeal found that the sentencing judge had erred by failing to give the applicant any discount for the utilitarian value of the early pleas of guilty entered in the Local Court for charges 7, 8, 9, 10, 11, and 12. The failure to apply this discount was identified as a specific sentencing error. An early guilty plea ordinarily attracts a reduction in sentence to reflect its utilitarian value to the justice system, and overlooking it altogether constituted a material error.
The Court considered whether the error warranted intervention on each affected charge. For charges 7, 8, 9, 10, and 12, the Court found that lesser sentences were not warranted in law despite the oversight. However, the sentence for charge 11 (break-and-enter of a storage shed at Cattai, contrary to s 112(1) of the Crimes Act 1900) was found to be manifestly excessive. The Court determined that the appropriate starting point for that charge was six years, reduced by 25 per cent for the early plea to four years and six months.
On the question of the applicant's custody conditions, the Court noted he had been placed in a special management area at his own request due to safety concerns and was housed at Parklea Correctional Centre with limited employment opportunities. The Court acknowledged the sentencing judge had found special circumstances but declined to make any further adjustment to the balance of term on the basis of those conditions.
The Court considered that a total effective sentence of eight years and six months, with a non-parole period of six years, appropriately reflected the overall criminality under the totality principle. That outcome was achieved by quashing and re-sentencing on charge 11 alone.
Orders Made
- Leave to appeal granted
- Sentence imposed by Viney ADCJ for charge 11 (an offence contrary to s 112(1) of the Crimes Act 1900) quashed
- Applicant re-sentenced on charge 11 to imprisonment with a non-parole period of 2 years, commencing 17 November 2008 and expiring 16 November 2010, with a balance of term of 2 years and 6 months expiring 16 May 2013
- Earliest eligible release to parole: 16 November 2010
Key Takeaways
- A sentencing court's failure to apply any discount for the utilitarian value of an early guilty plea constitutes an identifiable error, even where the overall sentence may appear to reflect the seriousness of the offending.
- In dismissing challenges to charges 7, 8, 9, 10, and 12, the Court of Criminal Appeal applied the principle that intervention is only warranted where a lesser sentence is warranted in law, not merely because an error occurred.
- The totality principle requires that accumulated sentences, viewed as a whole, reflect the overall criminality rather than producing a result disproportionate to the total offending conduct.
- Conditions experienced by a prisoner serving a sentence on protection, including limited employment and additional time locked in cells, were acknowledged but held insufficient here to justify further adjustment to the balance of term.
- Under s 6(3) of the Criminal Appeal Act 1912, the Court may quash an individual sentence and re-sentence on that charge to correct an error, without disturbing the remaining sentences in the overall structure.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 112(1), 117, 154A(1)(b), 177, 178BA(1), 188(1), 300(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Des Rosiers v R [2006] NSWCCA 16
- Johnson v The Queen (2004) 78 ALJR 616
- Pearce v The Queen (1998) 194 CLR 610
- R v M.A.K; R v M.S.K [2006] NSWCCA 381
- R v McNaughton [2006] NSWCCA 242
- R v Ponfield (1999) 48 NSWLR 327
- R v Webster [2005] NSWCCA 110
- Regina v Fernando [2002] NSWCCA 28
- Regina v Stankovic [2006] NSWCCA 229