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Court of Criminal Appeal 12 June 2008

Kerr v Regina

[2008] NSWCCA 133

DrugsTheft & propertyTraffic & drivingPublic order & justice offences
CRIMINAL LAW MULTIPLE OFFENCES SENTENCING PLEAS OF GUILTY DRUG COURT PROGRAMME WHERE JURISDICTIONAL MAXIMUM IMPOSED

Citation: Kerr v Regina [2008] NSWCCA 133
Court: NSW Court of Criminal Appeal
Date: 12 June 2008
Judges: Beazley JA, Johnson J, McCallum J

Background

The appellant was a repeat offender who pleaded guilty in the Drug Court of New South Wales to eleven substantive offences and two failure-to-appear offences. The offences fell into two groups: a series of property and stolen vehicle offences committed in late October and early November 2006, and a further set of driving and property offences committed in December 2006. Critically, the appellant was on parole when the first group of offences was committed, on bail when the second group was committed, and at large having failed to appear when the final offences occurred.

Because all charges had been referred from the Local Court, the Drug Court's sentencing jurisdiction was capped at the Local Court maximum, generally two years imprisonment per offence. Initial sentencing was conducted by Senior Judge Dive in March 2007, with a total term of three years imposed and the sentences structured to allow participation in a Drug Court treatment programme. The matter returned for final sentence before Judge Barnett in June 2007, who imposed a total term of two years with an eighteen-month non-parole period.

The appellant, unrepresented, pursued an appeal against both conviction and sentence. At the hearing, he abandoned the conviction appeal, stating he lacked the necessary paperwork and wishing to proceed promptly due to Family Court proceedings concerning his son. The Court proceeded to hear only the sentence appeal.

  • Whether the sentencing judge erred by imposing the jurisdictional maximum on the primary charge without providing a discount for the utilitarian value of the guilty plea.
  • Whether the sentencing approach was inconsistent with the High Court's requirement in Pearce v The Queen (1998) 194 CLR 610, which obliges a sentencing judge to fix an appropriate sentence for each individual offence before considering questions of concurrence or accumulation.
  • Whether, even if error in the sentencing approach were established, a less severe overall sentence was warranted in law such that the appeal should be allowed.

Decision

McCallum J, with whom Beazley JA and Johnson J agreed, identified genuine tension in the sentencing approach. The imposition of the jurisdictional maximum on the lead charge raised the question of whether the sentencing judge had failed to apply any discount for the utilitarian value of the plea. However, the Court noted an alternative explanation: the approach was more consistent with pre-Pearce practice, where the most serious offence served as the vehicle for reflecting the totality of the offender's criminality, with concurrent sentences for remaining offences. The sentencing judge's reference to the "head sentence" continuing as the first charge tended to confirm that he had not strictly applied the Pearce methodology.

Despite these concerns, the Court emphasised that it would not quash a sentence under section 6(3) of the Criminal Appeal Act 1912 unless satisfied that a less severe sentence was warranted in law. Regardless of whether the sentencing approach was technically flawed, the overall result could not be faulted. Given the number of offences, the extended period over which they were committed, and the appellant's status as a parolee and then a person on bail at the time of each successive group of offences, the Court concluded that a total term of two years with an eighteen-month non-parole period was not excessive. There was therefore no warrant to restructure the individual sentences to achieve the same outcome.

Orders Made

  • Appeal against conviction noted as abandoned.
  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, even where a sentencing judge's methodology is open to criticism, the appeal court will not intervene unless satisfied that a less severe sentence was warranted in law under section 6(3) of the Criminal Appeal Act 1912.
  • A failure to strictly apply the Pearce v The Queen framework, which requires an appropriate individual sentence to be fixed for each offence before totality is considered, may constitute error in approach without necessarily producing an erroneous overall result.
  • Where the result is correct, the Court of Criminal Appeal will decline to restructure individual sentences even if the reasoning that produced them was methodologically questionable.
  • Committing multiple offences while successively on parole, on bail, and then at large after failing to appear are significant aggravating features that can justify a total custodial term at or near the available maximum.
  • Drug Court referrals from the Local Court carry the Local Court's sentencing jurisdictional limits, capping the maximum available sentence per offence at two years imprisonment under the relevant provisions of the Drug Court Act 1998 and Criminal Procedure Act 1986.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW), ss 267, 268
- Drug Court Act 1998 (NSW), s 24

Cases:
- Pearce v The Queen (1998) 194 CLR 610 (High Court)
- AJO v Regina [2008] NSWCCA 28
- Kerr v Regina [2008] NSWCCA 44
- R v Doan (2000) 50 NSWLR 115
- R v El Masri [2005] NSWCCA 167
- Re Attorney-General's Application (No 2 of 2002) (2002) 137 A Crim R 196