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Court of Criminal Appeal 9 February 2009

Kershaw v R

[2009] NSWCCA 19

Theft & property
CRIMINAL LAW AND PROCEDURE SENTENCE PAROLE PERIOD MATERIAL ERROR SHOWN SENTENCE REDUCED

Citation: Kershaw v R [2009] NSWCCA 19
Court: NSW Court of Criminal Appeal
Date: 9 February 2009
Judge(s): Grove J, Blanch J, Kirby J

Background

The appellant pleaded guilty in the Port Macquarie District Court to one count of aggravated breaking and entering and committing a serious indictable offence (stealing). The aggravating circumstance was that the appellant knew a person was inside the dwelling at the time. The victim was a 57-year-old wheelchair-bound man whose home was entered and from which goods worth approximately $200 were stolen.

Hulme DCJ sentenced the appellant to a non-parole period of two years and nine months, commencing 31 August 2007, with a balance term of one year. The appellant had a substantial criminal history dating from age 14 and was subject to a good behaviour bond at the time of the offence.

The appeal was brought on the basis that the sentencing judge had been misinformed by the Crown Prosecutor about the applicable standard non-parole period for the offence. The Crown Prosecutor told the court the standard non-parole period was seven years, when the correct figure prescribed by statute was five years.

  • Whether the sentencing judge fell into material error by using an incorrect (inflated) standard non-parole period of seven years as a benchmark, instead of the correct period of five years.
  • Whether that error, if established, warranted a reduction in the sentence imposed.

Decision

The Court accepted the Crown's concession that the standard non-parole period for the offence was five years, not seven years. The sentencing judge had expressly referred to the seven-year figure as a benchmark and stated he was required to bear it in mind when fixing the appropriate sentence. That reliance on an inflated statutory reference point was a material error.

The Court acknowledged it could not determine any precise arithmetical relationship between the erroneous benchmark and the sentence actually imposed. However, Grove J concluded that, had the correct figure of five years been used, the assessment would have been lower to some extent. That was sufficient to establish a material error justifying appellate intervention.

On resentencing, the Court received a psychologist's report and a statement of remorse from the appellant, neither of which had been before the original sentencing judge. The Court also found special circumstances existed, warranting a departure from the standard statutory ratio between non-parole period and total sentence, particularly given the desirability of the appellant accessing residential rehabilitation upon release to parole.

The Crown's submission that no lesser sentence was warranted despite the error was rejected. The sentence was reduced, with the non-parole period shortened from two years and nine months to two years.

Orders Made

  • Leave to appeal against sentence granted and appeal allowed.
  • Sentence imposed in the District Court quashed.
  • Appellant resentenced to imprisonment consisting of a non-parole period of two years commencing 31 August 2007 and expiring 30 August 2009, with a balance term of one year commencing 31 August 2009.
  • Appellant ordered to be released to parole on 30 August 2009.

Key Takeaways

  • A sentencing court's express reliance on an inflated standard non-parole period as a benchmark constitutes a material error capable of vitiating the sentence, even where the precise effect on the outcome cannot be mathematically quantified.
  • Where a misstated standard non-parole period is higher than the correct figure and the judge expressly treats it as a guidepost, it is sufficient to conclude the sentence would have been lower had the correct figure been applied.
  • The Court of Criminal Appeal confirmed that fresh evidence, including psychological reports and expressions of remorse not before the original sentencing court, may be received and considered on resentencing.
  • Special circumstances warranting a variation of the statutory non-parole period to total sentence ratio can arise where rehabilitation prospects support a longer period on parole supervision.
  • Although the Court of Criminal Appeal noted it had no power to enforce a recommendation for residential rehabilitation, it indicated the matter would be drawn to the attention of the Parole Authority at the relevant time.

Legislation and Cases Referenced

Legislation:
- No specific legislation was cited by name in the judgment text, though the decision turns on the standard non-parole period provisions applicable to aggravated breaking and entering under NSW sentencing legislation.

Cases:
- No cases were cited in the judgment text provided.