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9
Court of Criminal Appeal 30 October 2007

Maxwell v R

[2007] NSWCCA 304

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING APPLICATION OF STANDARD NON PAROLE PERIOD AFTER PLEA OF GUILTY RELEVANCE OF CRIMINAL RECORD APPLICANT RESENTENCED.

Citation: Maxwell v R [2007] NSWCCA 304
Court: NSW Court of Criminal Appeal
Date: 30 October 2007
Judge(s): Handley AJA, Howie J, Price J

Background

The applicant pleaded guilty in the District Court to breaking and entering a dwelling house and committing a serious indictable offence (stealing) in circumstances of aggravation, namely inflicting actual bodily harm on the victim. The offence arose from a domestic dispute between his friend and a former partner. The applicant forced entry into a home, threw a beer bottle at one occupant, assaulted both men present, stole $100, and threatened the victims. He also asked that a related assault be taken into account on a Form 1.

The offence carried a maximum penalty of 20 years' imprisonment and attracted a standard non-parole period (SNPP) of 5 years. The applicant had a lengthy criminal history dating from 1991, including multiple offences of violence, prior prison sentences, and a history of breaching bonds and parole.

District Court Judge Hughes sentenced the applicant to a non-parole period of 3 years and 4 months with a balance of term of 1 year and 8 months, commencing 4 January 2006.

  • Whether the sentencing judge erroneously used the standard non-parole period as a starting point rather than a reference point, contrary to the correct approach under the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge impermissibly confined the exercise of the sentencing discretion
  • Whether the sentence imposed was manifestly excessive

Decision

The Court of Criminal Appeal found that the sentencing judge had fallen into legal error by treating the SNPP as a starting point and then working downwards from it, rather than using it as a reference point in the overall sentencing exercise. After a plea of guilty, the SNPP does not cease to be relevant; however, the correct approach requires the sentencing court to assess the objective seriousness of the offence against the midrange, then apply all relevant factors (including any guilty plea discount) to arrive at an appropriate sentence. Simply reducing the SNPP by a percentage for the plea is not the correct methodology.

The Court identified additional aggravating features that the sentencing judge had not properly accounted for. The applicant was armed with an offensive weapon and knew the victim was present in the home. The judge had also wrongly declined to treat the use of corporal violence as a distinct aggravating factor, separate from the element of actual bodily harm charged.

Howie J assessed the offence as below midrange in seriousness. Starting from a notional head sentence of 4 years 6 months before discount, a 10 per cent reduction for the guilty plea (entered on the day of trial) produced a head sentence of approximately 4 years. A finding of special circumstances was made, producing a non-parole period of 2 years 6 months. The Court noted that community protection required the applicant to serve at least that minimum period before being considered for parole.

The Court also observed that sentencing statistics for this class of offence appeared to undervalue both the maximum penalty and the SNPP, suggesting that sentences for break-and-enter offences involving violence to householders had not consistently reflected their serious nature.

Orders Made

  • Leave to appeal granted; appeal allowed
  • Sentence imposed in the District Court quashed
  • Applicant resentenced to imprisonment comprising a non-parole period of 2 years 6 months, commencing 4 January 2006 and expiring 3 July 2008, with a balance of term of 1 year 6 months

Key Takeaways

  • The Court of Criminal Appeal confirmed that a standard non-parole period must function as a reference point in the sentencing exercise, not a numerical starting point from which reductions are then mechanically calculated.
  • After a plea of guilty, the SNPP remains relevant to the sentencing exercise; its significance is not extinguished merely because the offender has pleaded guilty.
  • Where a sentencing judge fails to treat corporal violence as a distinct aggravating circumstance (separate from the element of actual bodily harm charged), that omission constitutes an error in the application of the sentencing framework.
  • Sentencing statistics do not override the statutory framework; where statistics suggest sentences for a class of offence are consistently low relative to the maximum penalty and SNPP, the statistics reflect an error in practice rather than a correct benchmark.
  • In resentencing, the Court took into account the applicant's post-sentence rehabilitation efforts, including participation in anger management and relapse prevention programmes, as relevant to the balance of term.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 21A, 105A, 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B

Cases
- R v Stambolis [2006] NSWCCA 56
- R v AJP [2004] NSWCCA 434
- R v McNaughton (2006) 66 NSWLR 566
- Mulato v R [2006] NSWCCA 282
- R v Way (2004) 60 NSWLR 168
- Reaburn v R [2007] NSWCCA 60
- R v Sanagalang [2005] NSWCCA 171
- Marshall v R [2007] NSWCCA 24