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Court of Criminal Appeal 14 September 2009

Smale v R

[2009] NSWCCA 220

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE EXISTING SENTENCE PAROLE PERIOD 86% OF TOTAL TERM WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Smale v R [2009] NSWCCA 220
Court: New South Wales Court of Criminal Appeal
Date: 14 September 2009
Judge(s): McClellan CJ at CL, Grove J, RA Hulme J (unanimous)

Background

The applicant was sentenced in the District Court in September 2005 for four offences arising from two separate break-and-enter incidents in August and September 2001. The principal offence was specially aggravated break, enter and steal under s 112(3) of the Crimes Act 1900, committed at a Marrickville community centre. During that offence, the applicant struck a 63-year-old maintenance worker with a pinch bar, breaking two bones in the man's wrist, before demanding car keys from a female employee at crowbar-point and making off in her vehicle with a safe containing approximately $530.

The sentencing judge imposed a total term of seven years with a non-parole period of five years for the principal offence. All sentences were ordered to commence on 18 September 2012, three years before the expiry of a non-parole period under a pre-existing unrelated sentence. The practical effect was to extend the applicant's minimum time in custody by two years. Eight further offences were taken into account on Form 1 documents at the time of sentencing.

The applicant sought leave to appeal, with the application filed in April 2009 following a grant of an extension of time. The appeal was confined to the sentence for the specially aggravated break, enter and steal offence.

  • Whether the sentencing judge erred in concluding that the grievous bodily harm (the broken wrist) was inflicted intentionally rather than recklessly, given the applicant's version of events was accepted for sentencing purposes
  • Whether the overall non-parole period of 86% of the total term was erroneous, given the judge had found special circumstances warranting a departure from the standard statutory ratio
  • Whether the sentence of seven years for the principal offence was manifestly excessive

Decision

On the question of intent versus recklessness, the Court noted that the sentencing judge had accepted the applicant's account of tripping on a tree root and striking out with the pinch bar while fending off the victim. The judge found that version was "at least consistent with a reckless act" but also sufficient to constitute an intentional form of malice. The Court of Criminal Appeal found this characterisation was open on the facts and disclosed no error.

On the non-parole proportion, the Court acknowledged that finding special circumstances ordinarily leads to a reduced ratio between the non-parole period and the total term. However, the Court applied the established principle that the interaction between a new sentence and a lengthy pre-existing sentence can produce a non-parole proportion that, when viewed in isolation, appears high without there being any error. The partial accumulation onto the existing sentence was itself a significant concession to the applicant, and the 86% ratio was explicable in that context.

On manifest excess, the Court found the sentence was well within the range of a sound sentencing discretion. The statistical material relied on by the applicant was treated with caution and did not account for the aggravating features in this case, namely the eight Form 1 offences and the fact that the applicant committed the offences while on bail and subject to a suspended sentence bond. The Crown had submitted the sentence was, if anything, lenient, noting the judge had also been misinformed as to the correct maximum penalty (25 years, not the 20 years the judge stated).

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's finding that grievous bodily harm was inflicted intentionally, rather than merely recklessly, can be sustained even where the offender's own version of events is accepted for sentencing purposes, provided that version is itself consistent with intentional conduct.
  • Where a new sentence is partially accumulated on a lengthy pre-existing sentence, the resulting non-parole proportion across the overall period of custody may exceed the standard statutory ratio without constituting error, even where special circumstances have been found.
  • Statistical sentencing comparisons must be approached with caution and carry little weight when they do not reflect the aggravating features particular to the case under consideration.
  • Committing serious offences while subject to two forms of conditional liberty (bail and a suspended sentence bond) is a significant aggravating factor that can justify a more severe sentence.
  • No error arose from the judge's misstatement of the maximum penalty where the misstatement resulted from incorrect information provided by the Crown, and where the sentence ultimately imposed remained within the proper range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 112(1), 112(3), 117, 154A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 33

Cases:
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Morris, Morris and Snelson v R [2008] NSWCCA 182
- Nguyen v R [2007] NSWCCA 14
- Pearce v The Queen (1998) 194 CLR
- Regina v Bloomfield (1998) 44 NSWLR 734
- R v Cramp [2004] NSWCCA 264
- R v Falls [2004] NSWCCA 335
- R v Simpson (2001) 53 NSWLR 704
- Salvaggio v R [2007] NSWCCA 136