Citation: Director of Public Prosecutions (NSW) v Cornwall [2007] NSWCCA 359
Court: NSW Court of Criminal Appeal
Date: 19 December 2007
Judges: Basten JA, Latham J, Rothman J
Background
The respondent was sentenced in the District Court on 14 March 2007 for a series of offences, including specially aggravated detention for advantage, aggravated break enter and steal, obtaining financial advantage by deception, and cultivating a prohibited drug. The aggregate sentence imposed by Quirk DCJ resulted in a non-parole period of 5 years and 6 months, with a total sentence period of 7 years and 10 months.
The Director of Public Prosecutions appealed on the ground that the sentence was manifestly inadequate. As the appeal developed, the Director's challenge extended beyond individual sentences to encompass the structural approach taken by the sentencing judge, including the manner in which sentences were run concurrently rather than cumulatively. The respondent took issue with this expansion of the grounds, noting that the notice of appeal gave little indication of the full scope of the challenge.
Legal Issues
- Whether the sentences imposed were manifestly inadequate given the objective gravity of the offences
- Whether the sentencing judge erred in structuring sentences concurrently, failing to reflect the principle of totality appropriately
- How the Court of Criminal Appeal should exercise its discretion on a Crown appeal, including the principles of restraint and double jeopardy
- Whether the sentencing judge's decision to backdate sentences should be disturbed on re-sentence
Decision
The Court of Criminal Appeal allowed the appeal, finding that the sentences imposed by the District Court failed to reflect the objective seriousness of the offences. The Court accepted that the manner in which sentences were structured, with excessive concurrency, produced an aggregate that was manifestly inadequate for offences of this gravity, particularly given the respondent's history of offending.
In addressing the Crown appeal principles, the Court confirmed that although no leave is required for the Director to appeal, the Court retains a lively discretion to decline intervention even where error is shown. This discretion is informed by the double jeopardy principle: a respondent faces sentence a second time, and the Court acknowledged that re-sentencing on a Crown appeal ordinarily results in a sentence somewhat less than what the court considers should have been imposed at first instance.
Basten JA noted the tension between restraint on Crown appeals and the public interest in uniform and adequate sentencing. McHugh J's reasoning in Everett was cited with approval for the proposition that manifestly inadequate sentences undermine public confidence in the justice system and create a sense of grievance among victims and those sentenced more severely for similar conduct.
Rothman J, agreeing with the sentence proposed by Latham J, addressed the backdating of sentences under s 47(2) of the Crimes (Sentencing Procedure) Act 1999. His Honour held that the discretion to backdate was available to the sentencing judge and should not be disturbed. He also noted that where a breach of parole is treated as an aggravating feature (as it was here), failing to allow credit for additional time served could amount to double counting.
Orders Made
- Indictment Count 1 (taking into account a Form 1 offence): 11 years imprisonment; non-parole period of 7 years from 13 December 2008, expiring 12 December 2015; balance of term of 4 years, expiring 12 December 2019
- Indictment Count 2: 6 years imprisonment; non-parole period of 4 years from 13 December 2008, expiring 12 December 2012; balance of term of 2 years, expiring 12 December 2014
- Committal Count 1: 18 months imprisonment from 13 December 2007, expiring 12 June 2009
- Committal Count 2: Fixed term of 2 years from 13 December 2007, expiring 12 December 2009
- Committal Count 3 (taking into account Form 1 offences): 3 years imprisonment; non-parole period of 2 years from 13 December 2005, expiring 12 December 2007; balance of term of 1 year, expiring 12 December 2008
- Respondent eligible for release to parole on 13 December 2015
Key Takeaways
- A Crown appeal against sentence does not require leave under s 5D of the Criminal Appeal Act 1912 (NSW), but the Court of Criminal Appeal retains a lively discretion to decline intervention even where error is established, reflecting the double jeopardy principle.
- Where the Court does intervene on a Crown appeal, it ordinarily imposes a sentence somewhat less than what it considers should have been imposed at first instance, giving recognition to the element of double jeopardy involved in the respondent standing for sentence a second time.
- Manifestly inadequate sentences carry a public interest dimension beyond the individual case: they can undermine public confidence in the courts and create justifiable grievances among victims and others sentenced more severely for comparable offending.
- Excessive concurrency in structuring multiple sentences can itself constitute error where the resulting aggregate fails to reflect the objective gravity of the offences, independent of the adequacy of individual sentence terms.
- Under s 47(2) of the Crimes (Sentencing Procedure) Act 1999, a discretion to backdate sentences exists and, where a breach of parole has already been treated as an aggravating feature, allowing credit for additional time served avoids the risk of double counting.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 86, 97, 112, 178BA
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 47
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), s 23
Cases:
- Allpass (1993) 72 A Crim R 561
- Callaghan v The Queen [2006] NSWCCA 58; (2006) 160 A Crim R 145
- Dinsdale v The Queen (2000) 202 CLR 321
- Everett v The Queen (1994) 181 CLR 295
- Postiglione v The Queen (1997) 189 CLR 295
- R v Holder and Johnston [1983] 3 NSWLR 245
- R v Rossi (SA CCA, 20 April 1988, unreported)
- R v Tadrosse [2005] NSWCCA 145
- R v Wall [2002] NSWCCA 42
- Whittaker v The King (1928) 41 CLR 230