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Court of Criminal Appeal 24 September 2007

Symonds v Regina

[2007] NSWCCA 282

DrugsTheft & propertyTraffic & driving
MULTIPLICITY OF OFFENCES DRUG COURT TERMINATES PROGRAM JUDGE CONSIDERS SPECIAL CIRCUMSTANCES ACCUMULATION OF SENTENCES STATUTORY RATIO OBSERVED AVOIDANCE OF "DOUBLE COUNTING"

Citation: Symonds v Regina [2007] NSWCCA 282
Court: New South Wales Court of Criminal Appeal
Date: 24 September 2007
Judge(s): Mason P, Adams J, Smart AJ

Background

The appellant was a man in his mid-twenties with a lengthy criminal history spanning driving, drug, and dishonesty offences. He entered a Drug Court treatment program in August 2005, with sentences on multiple counts suspended pending his participation. Over approximately ten months, he repeatedly failed to comply with program requirements, serving 49 days of sanctions, and remained on Phase One of a three-phase program throughout.

In June 2006, the Drug Court terminated the program on the basis that the appellant had no potential to progress and posed too great a risk of reoffending. Further offences, including a residential break, enter and steal committed while on the program, were then also before the court for sentencing. Senior Judge Dive sentenced the appellant on 11 counts on 7 August 2006, imposing cumulative sentences for the three most serious matters and concurrent terms for the remainder.

The total effective non-parole period was 28 months, with an aggregate head sentence of 38 months. The appellant sought leave to appeal, arguing that the sentencing judge had failed to properly consider special circumstances that would have warranted a reduction in the statutory ratio of non-parole period to total sentence.

  • Whether the sentencing judge erred by failing to consider special circumstances that might justify departing from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999 s 44.
  • Whether the accumulation of sentences across multiple offending episodes required explicit consideration of special circumstances in the sentencing judge's reasons.
  • Whether the subjective features of the appellant's case, including his disadvantaged background, drug addiction, and psychological profile, warranted further reductions in the non-parole periods imposed.

Decision

The Court of Criminal Appeal, in reasons delivered by Smart AJ (with Mason P and Adams J agreeing), granted leave to appeal but dismissed the appeal. The Court found that, unlike in R v Henry [2004] NSWCCA 306, the sentencing judge in this case had been alert to the question of special circumstances and had expressly addressed it. The judge had allowed for the accumulation of sentences when structuring the non-parole periods on the key counts and had specifically referred to preserving the statutory ratio.

The Court accepted that the sentencing judge had attached considerable weight to the appellant's subjective circumstances: his traumatic childhood, fragmented schooling, drug dependency, minimal capacity to manage stressors, and the psychological report tendered on his behalf. The resulting sentences were characterised by the Court as moderate and as genuinely reflecting those features.

The Court noted that care had appropriately been taken to avoid "double counting," meaning the subjective features had already been factored into the reduced head sentences, and it would therefore be impermissible to use the same factors again to further reduce the non-parole periods. Given the appellant's very poor record, his continued offending while on the Drug Court program and on bail, and the guarded prognosis for rehabilitation, the Court was not persuaded that lesser sentences were warranted even on a resentencing exercise.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge dealing with accumulated sentences across multiple offending episodes must turn their mind to whether special circumstances exist, but need not use the precise words "special circumstances" provided the reasons demonstrate that the issue was considered.
  • A distinction was drawn from R v Henry [2004] NSWCCA 306: intervention on appeal is warranted where the sentencing judge failed to consider accumulation as a relevant factor, but not where the judge expressly addressed it and preserved the statutory ratio.
  • Where moderate sentences have already been imposed to reflect an offender's subjective features, the principle against "double counting" operates to prevent those same features from being used a second time to further reduce non-parole periods.
  • Termination of a Drug Court program due to an offender's failure to progress and assessed risk of reoffending is a relevant sentencing consideration, capable of limiting the weight otherwise given to rehabilitative prospects.
  • In dismissing the appeal, the Court emphasised that the statutory ratio between non-parole period and head sentence under s 44 of the Crimes (Sentencing Procedure) Act 1999 remained the appropriate framework, with departures requiring genuine justification beyond subjective features already accounted for in the sentences themselves.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (standard non-parole period ratio)

Cases:
- R v Henry [2004] NSWCCA 306 (Simpson J, Grove and Shaw JJ agreeing) (special circumstances and accumulation of sentences)