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10
Court of Criminal Appeal 27 November 2008

Arnaout v R

[2008] NSWCCA 278

Also reported as (2008) 191 A Crim R 149
Assault & violencePublic order & justice offences
SENTENCING APPEAL SENTENCING EARLY PLEA OF GUILTY SENTENCING MULTIPLE OFFENCES

Citation: Arnaout v R [2008] NSWCCA 278
Court: NSW Court of Criminal Appeal
Date: 27 November 2008
Judge(s): Basten JA; Hislop J; Price J

Background

The applicant was sentenced in the District Court at Campbelltown on 14 September 2007 in respect of seven separate offences, plus two further counts taken into account on a Form 1. The offences included aggravated robbery and escape from lawful custody. The overall structure produced a non-parole period of seven years with a further parole period of three years.

The applicant sought leave to appeal on three grounds: that the sentencing judge failed to give a proper utilitarian discount for early pleas of guilty; that the accumulated sentences failed to give sufficient weight to the principle of totality; and that the sentence for the escape from lawful custody was excessive. The Crown did not cross-appeal on any count.

The appeal also raised two significant questions of statutory construction: whether the sentencing judge's approach to structuring individual sentences was legally sound, and whether section 6(3) of the Criminal Appeal Act 1912 (NSW) allows the Court of Criminal Appeal to assess the overall effective sentence rather than only each individual sentence.

  • Whether the sentencing judge properly applied a utilitarian discount for early pleas of guilty, and whether a judge is required to specify an undiscounted starting point
  • Whether the accumulated sentences adequately applied the totality principle
  • Whether the sentence imposed for escape from lawful custody was excessive
  • Whether the sentencing judge erred by treating the overall non-parole period as the starting point, then working backward to assign individual sentence components, rather than setting each individual sentence first
  • Whether "sentence" in section 6(3) of the Criminal Appeal Act 1912 refers to an individual sentence for a single offence or the aggregate effective sentence across multiple offences

Decision

Guilty plea discount. The Court found no demonstrated error in the sentencing judge's approach to the early pleas of guilty. A sentencing judge is not required to specify an undiscounted starting point or to quantify the discount in precise terms, provided it is clear that a benefit was given.

Totality. The Court rejected the submission that the accumulated sentences failed to give adequate weight to totality. The Court noted, however, that the sentence on count three (aggravated robbery) appeared remarkably lenient given the Form 1 offences, but as there was no Crown appeal against that sentence, the point did not affect the outcome.

Escape from lawful custody. The Court found the sentence for this offence was excessive. The sentencing judge had identified a fixed term of two years as appropriate for the escape, but then restructured it as part of the global non-parole calculation, producing an effective sentence of five years for that offence. Basten JA identified three related errors: a sentence of imprisonment must be imposed for each individual offence under sections 44 and 45 of the Crimes (Sentencing Procedure) Act 1999; a non-parole period is a component of a sentence for a specific offence, not a device for achieving a global custodial period; and the judge had in effect sentenced for the accumulation of offences rather than for each offence separately. An appropriate sentence, incorporating a discount for the early plea, was three years and nine months with a non-parole period of two years.

Section 6(3) and the meaning of "sentence". The Court addressed whether the section empowers the Court of Criminal Appeal to consider the overall effective sentence, not just each individual sentence in isolation. Price J (with Hislop J agreeing) expressed the view that "sentence" in section 6(3) includes the overall effective sentence, consistent with the approach in R v Bottin and R v Georgiou. Basten JA left the point open, noting it was unnecessary to resolve it in this case because restructuring the individual sentences could not replicate the same overall 10-year term. The issue therefore remains technically unresolved at the level of binding authority on this point.

Orders Made

  • Leave to appeal granted in respect of all sentences imposed by Sorby DCJ on 14 September 2007
  • The appeal dismissed in respect of each sentence other than that for escape from lawful custody
  • The sentence for escape from lawful custody quashed and substituted with imprisonment for three years and nine months, with a non-parole period of two years, commencing 25 January 2012 (non-parole period expiring 24 January 2014; balance of term expiring 24 October 2015)

Key Takeaways

  • A sentencing judge must set an individual sentence for each offence before addressing questions of concurrency, accumulation, and totality. It is an error to determine a global non-parole period first and then work backward to assign components to individual offences.
  • Under sections 44 and 45 of the Crimes (Sentencing Procedure) Act 1999, a non-parole period is a mandatory component of a sentence imposed for a specific offence. It cannot be used as a freestanding mechanism to achieve a desired aggregate custodial outcome.
  • The Court confirmed that a sentencing judge giving a utilitarian discount for early guilty pleas is not required to state an undiscounted starting point in precise numerical terms, provided the existence of the benefit is apparent from the reasons.
  • A majority of the Court expressed the view that "sentence" in section 6(3) of the Criminal Appeal Act 1912 refers to the overall effective sentence where multiple sentences are imposed, enabling the Court to assess whether the aggregate is warranted in law. Basten JA expressly declined to resolve the point, so the question was not definitively settled.
  • Where Form 1 offences are taken into account, a sentencing judge must give them proper weight when imposing the sentence on the count to which they are attached. Failure to explain an apparently lenient outcome may constitute an error, though the absence of a Crown appeal limits the Court's ability to remedy it.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5(1), 5D, 6(3), 7(1A)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 33, 44, 44(1), 44(2), 45, 45(2), 57(2)
- Crimes Act 1900 (NSW), ss 59(1), 94, 95, 112(1), 154C(2), 310D(a)

Key Cases:
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Bottin [2005] NSWCCA 254
- R v Georgiou [2005] NSWCCA 237
- Mill v The Queen (1988) 166 CLR 59
- Johnson v The Queen [2004] HCA 15; 78 ALJR 616
- R v Simpson [2001] NSWCCA 534
- R v Thomson (Court of Criminal Appeal, 21 May 1986, unreported)
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- Neal v The Queen [1982] HCA 55; 149 CLR 305
- Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; 224 CLR 193