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Court of Criminal Appeal 21 February 2008

HAINES v R

[2008] NSWCCA 12

DrugsTheft & property
SENTENCE APPEAL DRUG COURT REFERRAL INITIAL SENTENCE FAILURE TO ADJUST FOR ACCUMULATION NO PRACTICAL EFFECT SENTENCE SHOULD STILL BE CORRECTED.

Citation: [2008] NSWCCA 12
Court: NSW Court of Criminal Appeal
Date: 21 February 2008
Judge(s): Basten JA, Barr J, Adams J

Background

The appellant was a 21-year-old Aboriginal man who pleaded guilty in the District Court to two counts of breaking, entering and stealing, committed in Surry Hills in October 2005. The second charge involved aggravated circumstances (being in company) and carried a maximum penalty of 20 years imprisonment with a standard non-parole period of five years. A number of additional minor offences were taken into account on a Form 1 (a document listing related offences dealt with at the same time without separate conviction).

The sentencing judge imposed cumulative sentences and referred the appellant to the Drug Court for a compulsory drug treatment order under the Drug Court Act 1998. The appellant had a background of heroin dependence, an unstable upbringing including foster care and family separation, and the sentencing judge accepted that the offences were drug-motivated. The principles in R v Fernando, concerning sentencing of Aboriginal offenders whose circumstances have been adversely affected by social disadvantage, were applied.

The appellant challenged the sentences on two grounds: that special circumstances justified a reduction in the statutory ratio between the non-parole period and the total term, and that the sentences were manifestly excessive.

  • Whether the sentencing judge erred by failing to adjust the non-parole period on the second charge to reflect the special circumstances ratio under s 44(2) of the Crimes (Administration of Sentences) Act 1999.
  • Whether the overall sentences were manifestly excessive.
  • Whether the Court of Criminal Appeal should correct a sentencing error where, in practical terms, the appellant had already benefited from earlier release through the Drug Court program.

Decision

Adams J (with whom Basten JA and Barr J agreed) found that the sentencing judge had erred in formulating the non-parole period for the second charge. The judge had expressly acknowledged that an adjustment to the statutory ratio was warranted, but then failed to apply that adjustment when fixing the actual non-parole period. This oversight was identified as a miscarriage of the sentencing discretion.

The Crown submitted that the Court should not interfere because, in practical terms, the appellant's participation in the compulsory drug treatment program had already resulted in an earlier prospect of release than a conventionally-served sentence would have provided. Adams J rejected this submission. The Drug Court referral occurs after sentencing and does not form part of the sentencing process itself. The error was adverse to the appellant, and the fact that events had overtaken it was not a sufficient reason to leave an identified error uncorrected.

On the question of manifest excess, the appeal in relation to the first charge was dismissed. The overall sentence was not found to be excessive. The court limited its intervention to correcting the non-parole period on the second charge to bring it into conformity with the s 44(2) ratio.

Orders Made

  • Leave to appeal granted.
  • Appeal in respect of the sentence on charge 1 dismissed.
  • Appeal in respect of the sentence on charge 2 allowed as to the non-parole period; the non-parole period varied to two years and six months, commencing 5 October 2006 and expiring 4 April 2009.

Key Takeaways

  • A sentencing judge who expressly acknowledges special circumstances justifying a departure from the standard non-parole ratio must give effect to that finding; failing to do so constitutes a miscarriage of the sentencing discretion.
  • The Court of Criminal Appeal confirmed that a Drug Court referral under s 18B of the Drug Court Act 1998 occurs after sentencing and is a separate step. The sentencing process must be completed properly before any referral is made.
  • Where a sentencing error is adverse to an appellant, the practical effect of subsequent events does not excuse the court from correcting it.
  • In dismissing the manifest excess ground, the court distinguished between the overall appropriateness of a sentence and a discrete technical error in the formulation of the non-parole period, allowing the appeal on the narrower ground only.
  • Under R v Fernando, the particular social and personal circumstances of Aboriginal offenders remain a relevant and significant consideration at sentencing, and the court here treated those principles as applicable on the facts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1) and s 112(2) (breaking, entering and stealing)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 44(2) (standard non-parole ratio), s 106D (compulsory drug treatment detention stages)
- Drug Court Act 1998 (NSW), s 18B (referral to Drug Court for compulsory drug treatment order)

Cases:
- R v Fernando (1992) 76 A Crim R 58 (sentencing principles applicable to Aboriginal offenders affected by social disadvantage)