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Court of Criminal Appeal 30 October 2009

Hagen v R

[2009] NSWCCA 268

Theft & property

Citation: Hagen v R [2009] NSWCCA 268
Court: NSW Court of Criminal Appeal
Date: 30 October 2009
Judge(s): Allsop P, Fullerton J, McCallum J

Background

The appellant was a 21-year-old man who, in the early hours of 22 April 2007, broke into the subfloor of a Wagga Wagga home and lit a fire using clothing and wood he found there. He was heavily intoxicated following two days of birthday celebrations. A neighbour observed him, police were called, and the fire was extinguished before causing serious damage. The elderly owner, who lived alone, was woken by a smoke alarm.

The appellant pleaded guilty in the District Court to aggravated breaking and entering a dwelling while a person was present (under s 112(2) of the Crimes Act 1900, carrying a maximum of 20 years and a standard non-parole period of 5 years) and to damaging property by fire (under s 195(1)(b), carrying a maximum of 10 years). The aggravated element was established by statutory presumption: there was no evidence the appellant actually knew anyone was home.

The District Court sentenced him to 3 years and 7 months on the first count (with a non-parole period of 2 years) and 2 years as a fixed term on the second count. The appellant sought leave to appeal, arguing the sentences were affected by legal error and were manifestly excessive.

  • Whether the sentencing judge erred by failing to make a specific finding about where the offence fell on the spectrum of objective seriousness under s 112(2), as required by the standard non-parole period regime
  • Whether the plea of guilty discount was correctly applied
  • Whether full-time custody was the only available sentencing option, or whether alternatives such as periodic detention ought to have been considered
  • Whether the resulting sentences were manifestly excessive
  • Whether the appellant's period of full-time imprisonment served under the erroneous sentence then prevented a periodic detention order being made on resentencing, pursuant to s 65A of the Crimes (Sentencing Procedure) Act 1999

Decision

The Court of Criminal Appeal granted leave and allowed the appeal. The Crown conceded the primary error: the sentencing judge had acknowledged the offence was not in the upper range but failed to make the specific finding required by authority (following R v Mitchell, R v Gallagher and R v Van Rysewyk) about where the offence sat relative to the middle of the range of objective seriousness. That failure constituted a legal error in the standard non-parole period analysis.

The sentencing judge had also expressed a clear preference for periodic detention, but considered himself precluded from making such an order because his starting point of 4 years placed the sentence beyond the 3-year threshold for periodic detention eligibility. The Court of Criminal Appeal found the starting point was itself too high, which had the downstream effect of incorrectly foreclosing the periodic detention option.

When the Court came to resentence, however, a practical obstacle had emerged. The appellant had by then served 12 months of full-time imprisonment under the erroneous sentence. Section 65A of the Crimes (Sentencing Procedure) Act 1999 provides that a periodic detention order cannot be made for an offender who has previously served more than 6 months by way of full-time detention under any one sentence. Even though that sentence had been quashed on appeal, the Court found that the appellant had "previously served" such imprisonment for the purposes of s 65A, and periodic detention was therefore no longer available.

The Court acknowledged the paradox directly: the very imprisonment served under a legally flawed sentence had become the obstacle to correcting that error. It treated this circumstance as itself a special circumstance within the meaning of s 44 of the Crimes (Sentencing Procedure) Act, justifying a further adjustment to the ratio between the non-parole period and the total term. The Court fixed the non-parole period on count 1 at 12 months, a period already fully served, and directed the appellant's immediate release on parole.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed on 7 November 2008 quashed; in lieu:
  • Count 2: fixed term of 6 months commencing 25 October 2008, expiring 24 April 2009
  • Count 1: non-parole period of 12 months commencing 25 October 2008, with a balance of term of 17 months expiring 24 March 2011
  • Immediate release of the appellant on parole, pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999

Key Takeaways

  • Under the standard non-parole period regime, a sentencing court must make a specific finding about where the offence falls relative to the midpoint of objective seriousness, not merely acknowledge that the offence is below the upper range. Failing to do so constitutes legal error requiring appellate intervention.
  • The Court of Criminal Appeal confirmed that an erroneous starting point can have cascading consequences, including wrongly foreclosing alternative sentencing options such as periodic detention that would otherwise have been available.
  • Section 65A of the Crimes (Sentencing Procedure) Act 1999 bars a periodic detention order where the offender has previously served more than 6 months of full-time detention under any single sentence, even if that sentence is later quashed on appeal.
  • The Court found that imprisonment served under a quashed (and therefore legally erroneous) sentence can still engage the prohibition in s 65A, creating a situation the Court itself described as a "paradox."
  • Where the operation of s 65A prevents a periodic detention order from being made on resentencing solely because of imprisonment served under a legally flawed sentence, that circumstance can itself constitute a "special circumstance" justifying a further reduction in the ratio of the non-parole period to the balance of term.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 105A(2A), 112(2), 195(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 6, 44, 50, 65A
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v Mitchell, R v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94
- R v Van Rysewyk [2008] NSWCCA 130