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Court of Criminal Appeal 23 February 2009

Robertson v R

[2009] NSWCCA 38

Theft & property
CRIMINAL LAW SENTENCING TOTALITY PAROLE PERIOD

Citation: Robertson v R [2009] NSWCCA 38
Court: New South Wales Court of Criminal Appeal
Date: 23 February 2009
Judge(s): Grove J, Buddin J, Price J

Background

The applicant was convicted by a jury in the District Court of aggravated break, enter and steal (committed in company), two counts of taking and driving a conveyance, and malicious damage, arising from a brazen late-night theft of an ATM from a shopping centre at Tuggerah on the Central Coast. The offenders stole a truck and a bobcat, used the bobcat to smash through the centre's glass doors, ripped the ATM from the floor, and fled with it. The ATM contained $44,340, none of which was recovered. DNA evidence linked the applicant to the offences.

The District Court sentenced the applicant to a principal term of 8 years imprisonment with a 6-year non-parole period for the aggravated break, enter and steal, to commence on 2 March 2007. Additional concurrent and partly cumulative fixed terms were imposed for the remaining offences. The overall effective non-parole period was 7 years, with a total term of 9 years.

The applicant sought leave to appeal against the sentences only, not the convictions. The central complaint was that the structure of the cumulative sentences produced an overall non-parole period that was disproportionately high relative to the total term.

  • Whether the sentencing judge erred by imposing cumulative sentences in a way that produced an overall non-parole period exceeding 75% of the total effective term, in breach of the standard statutory ratio under the Crimes (Sentencing Procedure) Act 1999
  • Whether the totality principle required intervention to reduce the overall sentence
  • Whether, even if a technical error existed in the sentence structure, a different sentence was warranted in law

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Buddin J (with Grove J and Price J agreeing) examined whether the cumulative sentence structure had produced an impermissible distortion of the ratio between the non-parole period and the total term.

Under the Crimes (Sentencing Procedure) Act 1999, the standard position is that a non-parole period should not exceed three-quarters of the total term. However, the Court confirmed that where cumulative sentences are imposed, the mathematical effect on the overall ratio must be considered, but a modest departure from the standard proportion does not automatically constitute error.

The Court found the departure from the statutory proportion in this case was relatively minor. Importantly, the sentencing judge had given careful consideration to selecting an overall non-parole period that properly reflected both the objective gravity of the offending and the applicant's significant criminal history. The judge was also satisfied that a 2-year parole period was adequate in the circumstances.

The Court concluded that even accepting the applicant's argument that some technical error may have occurred, it was not persuaded that a different sentence was warranted in law. The sentence was upheld in its entirety.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A minor departure from the standard statutory ratio between a non-parole period and total term does not automatically warrant intervention on appeal, provided the sentencing court has given genuine consideration to the appropriate overall periods.
  • Where cumulative sentences are imposed, the sentencing court must consider the effect of that structure on the overall non-parole period, not merely the individual components in isolation.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the ultimate question is whether a different sentence is warranted in law, not simply whether a technical error can be identified in the sentence structure.
  • Under the totality principle, each case turns on its own facts: the court must assess whether the overall non-parole period is appropriate having regard to the gravity of the offending and the offender's antecedents.
  • No error was established where the sentencing judge deliberately selected an overall non-parole period reflecting the seriousness of the offending and concluded that the resulting parole period was adequate in the circumstances.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Pearce v The Queen (1998) 194 CLR 610
- Dunn v R [2007] NSWCCA 312
- R v Ibrahim [2005] NSWCCA 43
- R v Lyndon [2003] NSWCCA 152
- R v Simpson (2001) 53 NSWLR 704