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Court of Criminal Appeal 26 September 2008

Fieldsend v R

[2008] NSWCCA 202

Assault & violenceTheft & propertyDomestic & family violencePublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE ACCUMULATION OF SENTENCES

Citation: Fieldsend v R [2008] NSWCCA 202
Court: NSW Court of Criminal Appeal
Date: 26 September 2008
Judge(s): McClellan CJ at CL, Barr J, Price J

Background

The appellant pleaded guilty in the District Court to four serious offences spread across two indictments: an armed assault and vehicle taking on 6 December 2006; malicious damage with intent to endanger life on 9 December 2006; and two armed robberies committed with a machete on 18 and 19 December 2006. He also consented to being sentenced for five additional summary offences listed in a certificate under s 166 of the Criminal Procedure Act 1986, including assault, breach of an Apprehended Domestic Violence Order, and intimidation. The offences arose from a pattern of violent conduct against a former domestic partner and strangers.

The original sentences, imposed by Woods ADCJ in the District Court, produced a total effective sentence comprising a non-parole period of eight years and six months and a balance of term of one year and nine months, with eligibility for parole on 19 June 2015.

The appellant sought leave to appeal, arguing that the structure and accumulation of the sentences contained legal error and produced an unjust outcome.

  • Whether the District Court erred in the manner in which it accumulated the individual sentences upon one another
  • Whether the resulting aggregate sentence was manifestly excessive or otherwise infected by error
  • What the appropriate head sentence and non-parole period should be across the four indictable offences, given the totality principle and the need to provide a meaningful parole period for rehabilitation

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding error in the structure and accumulation of the sentences imposed below. Barr J, with whom McClellan CJ at CL and Price J agreed, found that the manner in which the sentences had been built upon one another was flawed, and that the resulting framework did not reflect a sound exercise of the sentencing discretion.

In resentencing, Barr J aimed for an aggregate head sentence of 10 years with a non-parole period of seven years across the four indictable offences. The two earliest sentences were imposed as fixed terms, since their parole periods would be wholly absorbed by the non-parole periods of the sentences that followed. The final sentence in the sequence was given a parole period that exceeded the ordinary one-third threshold, which the Court considered justified by the accumulation of sentences and the appellant's particular rehabilitation needs.

The Court declined to interfere with the sentences already imposed for the five offences dealt with under the s 166 certificate, leaving those fixed terms of 12 months each undisturbed.

Orders Made

  • Leave to appeal granted and appeal allowed
  • Sentences for all four indictable offences quashed
  • First offence in the second indictment: fixed term of three years and nine months commencing 20 December 2006, expiring 19 September 2010
  • Second offence in the second indictment: fixed term of three years and nine months commencing 20 December 2007, expiring 19 September 2011
  • First offence in the first indictment: non-parole period of four years commencing 20 December 2009, expiring 19 December 2013; balance of term of six months expiring 19 June 2014
  • Second offence in the first indictment: non-parole period of two years and three months commencing 20 September 2011, expiring 19 December 2013; balance of term expiring 19 December 2016
  • First eligible parole date declared as 19 December 2013

Key Takeaways

  • The District Court's approach to accumulating the individual sentences was found to be in error, warranting resentencing across all four indictable counts.
  • Where sentences are accumulated and only the final parole period remains operative, the Court of Criminal Appeal confirmed it is permissible for that parole period to exceed one-third of the relevant non-parole period when justified by the effect of accumulation and the offender's rehabilitation needs.
  • Fixed terms (with no parole consideration) are appropriate for earlier sentences in an accumulated sequence when the parole component of those sentences would be entirely subsumed by the non-parole periods of subsequent sentences.
  • Under ss 168, 267, and 268 of the Criminal Procedure Act 1986, offences dealt with by certificate under s 166 attract only the maximum penalties available on summary disposal in the Local Court, effectively capping individual sentences at two years.
  • Sentences imposed for the s 166 certificate offences were left undisturbed, illustrating that an appeal court may allow an appeal and resentence on some counts while declining to interfere with others.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW): ss 166, 168, 267, 268
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 44

Cases:
- Pearce v The Queen [1998] HCA 57
- R v GDP (1991) 53 A Crim R 1
- R v Micallef (1990) 50 A Crim R 465