Citation: English v R [2008] NSWCCA 134
Court: New South Wales Court of Criminal Appeal
Date: 20 June 2008
Judge(s): McClellan CJ at CL, Simpson J, Hidden J
Background
The applicant pleaded guilty in the District Court to a charge of intimidation with intent to cause fear of physical harm, committed on a commuter train. During a conversation with a university student, the applicant made a threatening remark about his capacity for violence, seized the front of his own jumper in a manner that caused the victim to fear he was concealing a weapon, and repeatedly requested money. The encounter ended when the applicant apologised and left the carriage; he was arrested by police at Granville station shortly afterwards.
The applicant had a significant criminal record, including multiple convictions for robbery and armed robbery, several of which had been committed on trains using a similar approach of sitting beside the victim and engaging in conversation before making threats. He was on parole at the time of the offence.
The District Court sentenced the applicant to 2 years and 8 months imprisonment, with a non-parole period of 2 years, backdated to the date of arrest. The applicant sought leave to appeal on the ground that the sentence was manifestly excessive.
Legal Issues
- Whether the sentence of 2 years and 8 months was manifestly excessive having regard to the objective gravity of the offence
- Whether the sentencing judge's starting point, before the guilty plea discount, was proportionate to the facts of the offence
- Whether the backdating of the sentence to the date of arrest was appropriate in the circumstances
- What sentence should be substituted, taking into account the applicant's parole eligibility at the time of the appeal hearing
Decision
Hidden J (with whom McClellan CJ at CL and Simpson J agreed) accepted that the sentence was manifestly excessive. The offence of intimidation, while serious, was objectively of relatively low gravity on the facts: the applicant made verbal threats and suggestive gestures, but no weapon was produced or used, and the encounter ended with an apology. A sentence representing slightly over half the statutory maximum, before discounting for the guilty plea, corresponded to a notional starting point of around 3.5 years, which the Court found could not be justified by the objective circumstances.
The Court examined Judicial Commission statistics showing that the great majority of comparable intimidation offences were dealt with summarily, and that District Court sentences were significantly lower on average. While the applicant's criminal record and his offending while on parole were relevant aggravating factors, the Court found those matters could not justify a sentence of that magnitude for this particular offence.
On the question of backdating, the Court acknowledged the discretionary nature of commencement date decisions under s 47 of the Crimes (Sentencing Procedure) Act 1999, and accepted several reasons why backdating remained appropriate: the parole revocation was solely caused by the present offence, the applicant had been on parole for a substantial period before reoffending, and backdating prevented him from being disadvantaged by the absence of any avenue to seek re-parole during the revoked balance of term.
Given that the applicant was approaching his parole eligibility date, the Court reduced the sentence by 6 months overall and the non-parole period by 4 months, while preserving the original commencement date. The Court noted that a shorter sentence still might have been warranted absent the proximity of the parole date, but considered that a brief period on parole remained in the community's interest.
Orders Made
- Leave to appeal granted
- Appeal allowed
- District Court sentence quashed
- In substitution, the applicant was sentenced to a non-parole period of 1 year and 8 months, commencing 30 October 2006 and expiring 29 June 2008, and a balance of term of 6 months, commencing 30 June 2008 and expiring 29 December 2008
- Release on parole directed from 29 June 2008
Key Takeaways
- A sentence representing more than half the statutory maximum for intimidation was found to be manifestly excessive where the objective gravity of the offence was relatively low, even where the offender had a poor criminal record and was on parole at the time.
- Aggravating factors such as a prior record and parole status do not, of themselves, justify a sentence disproportionate to the objective seriousness of the specific offence: the principle from Veen v The Queen (No 2) that a sentence cannot be elevated beyond what the offence warrants merely on the basis of criminal history remains operative.
- Under s 47 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court has a discretion as to the commencement date of a sentence, but that date cannot be later than the date of sentencing (confirmed by reference to Callaghan v R).
- Where a parole revocation was caused solely by the offence for which the offender is being sentenced, and the offender had no access to re-parole during the revoked balance of term, backdating the new sentence to the date of arrest may be appropriate.
- The Court of Criminal Appeal's capacity to intervene and reduce a sentence may itself be constrained by practical factors, including the proximity of the offender's parole eligibility date at the time of the appeal hearing.
Legislation and Cases Referenced
Legislation:
- Crimes Act (s 562AB) (since repealed)
- Crimes (Domestic and Personal Violence) Act 2007 (s 13)
- Crimes (Sentencing Procedure) Act 1999 (s 21A(2)(d), s 47)
Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR
- Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145