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Court of Criminal Appeal 4 July 2008

Raczkowski v Regina

[2008] NSWCCA 152

Sexual offencesAssault & violenceFirearms & weaponsDomestic & family violence
CRIMINAL LAW AND PROCEDURE BREACH OF CURRENT ADVO USE OF FIREARM SENTENCE

Citation: Raczkowski v Regina [2008] NSWCCA 152
Court: New South Wales Court of Criminal Appeal
Date: 4 July 2008
Judge(s): Bell JA, Grove J, Latham J

Background

The appellant was an estranged husband who, in January 2005, concealed himself in his wife's home and subjected her to a prolonged night of violence, threats, and sexual assault. He was armed with a Luger pistol, which he used to threaten her. The offending occurred in breach of an existing apprehended domestic violence order and continued for several hours before the victim was able to push him out of the premises and contact police.

The appellant was charged with and convicted of using a prohibited pistol without a licence, detaining a person with intent to obtain advantage occasioning actual bodily harm, attempted sexual intercourse without consent, and indecent assault. A firearm possession offence was taken into account on a Form 1. He was also sentenced for breach of the ADVO, that charge having been transferred to the District Court.

In the District Court, Sorby DCJ imposed a sentence structure that the appellant challenged in the Court of Criminal Appeal. The appeal raised concerns about both the technical application of concurrent sentence commencement dates and a question about whether a standard non-parole period applied to an attempt offence.

  • Whether the District Court erred in structuring concurrent sentences, specifically by failing to give practical effect to the intended concurrency through appropriate commencement dates
  • Whether a standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 applies where the charge is an attempt to commit the relevant offence, rather than the offence itself
  • Whether the overall sentence was manifestly excessive or otherwise infected by error warranting resentencing

Decision

The Court identified a technical and procedural error in the way the District Court had structured the sentence commencement dates. Although the sentencing judge had apparently intended a degree of concurrency between sentences, the dates as imposed did not give effect to that intention. The Court found this error was sufficient to justify intervention, even though the shortcomings were characterised as technical rather than indicative that a lesser sentence was warranted.

On the standard non-parole period question, the Court noted a potential ambiguity. Count 3 charged an attempt to commit sexual intercourse without consent under section 61I of the Crimes Act 1900. The schedule of standard non-parole periods in section 54D of the Crimes (Sentencing Procedure) Act 1999 specifies a standard non-parole period for offences against section 61I, but makes no mention of attempts. Section 61P of the Crimes Act provides that a person who attempts to commit such an offence is liable to the same penalty. The Court observed this structural question but did not resolve it, noting it was not determinative of the appeal's outcome.

The Court accepted the finding of special circumstances made by the sentencing judge, which allowed a greater proportion of the sentence to be served on parole than would otherwise apply. The practical remedy adopted was to advance the commencement dates of the sentences on counts 1 and 2 by 18 months, rather than to reduce the individual sentence lengths. The sentences on counts 3 and 4, though expired, were reimposed for clarity and to maintain the record of custody continuity.

Orders Made

  • Leave to appeal against sentence granted
  • Sentences imposed in the District Court quashed
  • Appellant resentenced as follows:
  • Count 1: fixed term of 3 years commencing 28 July 2005, expiring 27 July 2008
  • Count 2 (including Form 1 offence): non-parole period of 5 years commencing 28 July 2006, expiring 27 July 2011, with a balance term of 3 years and 6 months expiring 27 January 2015
  • Count 3: fixed term of 2 years commencing 28 January 2005, expiring 27 January 2007
  • Count 4: fixed term of 12 months commencing 28 January 2005, expiring 27 January 2006
  • Earliest date of eligibility for parole specified as 27 July 2011

Key Takeaways

  • A technical error in sentence commencement dates that fails to give effect to intended concurrency can justify appellate intervention, even where the individual sentence lengths are appropriate and no reduction in overall penalty is warranted.
  • Under the legislative framework considered in this case, an ambiguity may exist as to whether a standard non-parole period specified for a particular offence by section number also applies when the charge is an attempt to commit that offence. The Court of Criminal Appeal left this question open, finding it unnecessary to resolve it on the facts.
  • The appropriate remedy for a concurrency error is not necessarily to reduce sentence length. Adjusting commencement dates can be a practical alternative that achieves the overall justice of the sentencing outcome.
  • A finding of special circumstances, allowing a longer balance term beyond the non-parole period, survived the appeal and was carried through into the resentencing.
  • Failure to comply with sentencing procedures does not of itself produce a lesser sentence, consistent with established Court of Criminal Appeal authority including Itaoui v R and R v Brown.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including ss 61I and 61P
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 54D
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Hiron v R [2007] NSWCCA 336
- Itaoui v R (2005) 158 A Crim R 233
- R v Brown [2004] NSWCCA 249
- R v Burton [2008] NSWCCA 128
- R v Dunn (2004) 144 A Crim R 180
- R v Edigarov (2001) 125 A Crim R 551
- R v Hamid (2006) 164 A Crim R 179