Citation: CICEKDAG v REGINA [2007] NSWCCA 218
Court: New South Wales Court of Criminal Appeal
Date: 2 August 2007
Judge(s): Giles JA, James J, Hislop J
Background
The appellant pleaded guilty in the District Court to a range of offences arising from events on 4 and 5 September 2005. These included receiving stolen property, six counts of obtaining a benefit by deception (using a stolen credit card at various venues), driving a conveyance taken without consent, and aggravated dangerous driving occasioning grievous bodily harm. The dangerous driving offence arose from a police pursuit during which the appellant drove a stolen Toyota at high speed, disregarded intersections, and drove the wrong way in a one-way street, ultimately causing serious injury to a police officer.
Judge Donovan of the District Court grouped the offences for sentencing purposes and fully accumulated the non-parole periods across the groups, producing a total head sentence of six and a half years with a total non-parole period of five years. The sentencing judge identified two factors warranting a variation of the standard ratio between non-parole period and balance of term: the accumulation of sentences, and the appellant's mental condition and consequent need for rehabilitation and supervision on parole.
The appellant sought leave to appeal against the sentences imposed, arguing that the sentencing judge had failed to give adequate effect to his stated intention to depart from the standard one-third ratio between parole period and non-parole period.
Legal Issues
- Whether the sentencing judge adequately carried into effect his stated intention to vary the standard ratio between non-parole periods and balances of term, in light of the identified special circumstances (accumulation of sentences and the appellant's mental condition and rehabilitation needs)
- Whether the sentences, considered in their totality, made sufficient allowance for both factors the sentencing judge had identified as warranting a departure from the standard ratio
Decision
The Court of Criminal Appeal granted leave to appeal and allowed the appeal in part. James J (with whom Giles JA and Hislop J agreed) found that the sentencing judge had correctly identified two separate factors justifying a variation of the usual ratio: the accumulation of sentences, and the appellant's mental condition with the associated need for rehabilitation and supervision during a parole period.
However, the sentences as structured produced a total parole period that was only slightly less than one-third of the total non-parole periods. The Court found that while that margin might have been sufficient had accumulation alone been the operative factor, it did not reflect any meaningful allowance for the second identified factor, namely the appellant's mental condition and rehabilitation needs.
To correct this, the Court reduced the non-parole period for the aggravated dangerous driving offence from two years to one and a half years, while extending the balance of term for that offence from one and a half years to two years. This produced total non-parole periods of four and a half years against total head sentences of six and a half years, representing approximately 69 per cent, compared with the standard two-thirds (approximately 67 per cent). The remaining sentences were confirmed.
The Court also noted, without treating it as a ground of appeal, that the sentencing judge had misstated the maximum penalty for the most serious offence. The judge described the maximum for aggravated dangerous driving occasioning grievous bodily harm as five years when the correct maximum under s 52A(4) of the Crimes Act was eleven years.
Orders Made
- Leave to appeal against the sentences imposed on 29 September 2006 granted
- Appeal against the sentence for aggravated dangerous driving causing grievous bodily harm allowed
- Sentence for that offence quashed
- In lieu thereof, the appellant sentenced to a non-parole period of one and a half years commencing 5 September 2008, with a balance of term of two years
- Earliest date of eligibility for release on parole: 4 March 2010
- All other sentences imposed on 29 September 2006 confirmed
Key Takeaways
- Where a sentencing judge identifies multiple factors warranting special circumstances (a departure from the standard ratio of non-parole period to balance of term), the sentences as structured must give meaningful effect to each identified factor, not merely one of them.
- A total parole period only marginally below one-third of total non-parole periods may be adequate where accumulation alone justifies special circumstances, but is insufficient where a second independent factor, such as mental condition and rehabilitation needs, has also been identified.
- The Court of Criminal Appeal confirmed that the sentencing exercise requires consideration of sentences in their totality, particularly where multiple sentences are fully accumulated.
- Misstating the maximum penalty for an offence is a matter the Court noted with concern; in this case the maximum for the most serious offence was more than double what the sentencing judge described, though counsel did not press this as a separate ground of appeal.
- In dismissing most of the appeal, the Court of Criminal Appeal made only a targeted adjustment to the single sentence where the structural error was located, leaving the remainder of the sentencing regime intact.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 52A(4) (aggravated dangerous driving occasioning grievous bodily harm), 154A (driving a conveyance taken without consent), 178BA (obtaining a benefit by deception), 188 (receiving stolen property)
Cases:
- Clay v Regina [2007] NSWCCA 106
- R v Henry (1999) 46 NSWLR 346
- R v Park [2003] NSWCCA 142
- Veen v The Queen (No 2) (1988) 164 CLR 465