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Court of Criminal Appeal 6 April 2009

R v Pettersen; R v Bendt; R v Fell

[2009] NSWCCA 91

Assault & violenceDrugsFirearms & weaponsPublic order & justice offences
CRIMINAL LAW AND PROCEDURE SENTENCE CROWN APPEALS ASSERTING INADEQUACY ADJUSTMENT NOT REQUIRED

Citation: R v Pettersen; R v Bendt; R v Fell [2009] NSWCCA 91
Court: New South Wales Court of Criminal Appeal
Date: 6 April 2009
Judge(s): Grove J (principal judgment), Blanch J, Price J

Background

The three respondents were involved in an armed incursion at a bowling club in Sydney in January 2008. One respondent (Pettersen) drove the getaway vehicle while the others entered the premises, where a firearm was produced and pointed at contract cleaners, an ATM was attacked, and a police pursuit followed. During the pursuit, one respondent (Fell) pointed the firearm at pursuing officers. All three pleaded guilty in the Local Court and were committed to the District Court for sentence.

Ellis DCJ sentenced each respondent at Parramatta District Court on 22 September 2008. The Crown appealed all three sentences as manifestly inadequate.

  • Whether the sentences imposed on Fell and Bendt were manifestly inadequate because the sentencing judge reduced them below the accepted range in order to qualify those offenders for the Drug Court programme.
  • Whether those offenders were, in any event, eligible for the Drug Court programme.
  • Whether the sentence imposed on Pettersen was manifestly inadequate, given that a related offence had been dealt with separately rather than on a Form 1 (a procedural mechanism for taking additional offences into account at sentence without a separate conviction).

Decision

In the cases of Fell and Bendt, the Court of Criminal Appeal found that the sentencing judge had deliberately reduced the sentences below the bottom of the acceptable range in order to make the respondents eligible for the Drug Court programme. The Court found this constituted a legal error, particularly because the respondents were not in fact eligible for that programme in any event. The reductions therefore served no purpose and operated to undercut the proper sentencing range.

The Court allowed the Crown appeals for Fell and Bendt and restored their sentences to the level assessed before the erroneous reduction, which represented the bottom of the acceptable range. The adjustments increased the head sentences and non-parole periods modestly, but the Court noted that the context, namely deliberate reduction for a misconceived purpose, justified correcting the error even if the numerical change appeared small in isolation.

For Pettersen, the Crown argued that a related offence had not been included on the Form 1 and instead was dealt with separately, producing an overall result that was inadequate. The Court dismissed the Crown appeal against Pettersen, finding that, in the particular circumstances, no adjustment was required. The fact that the additional offence was dealt with separately rather than on the Form 1 did not, in those circumstances, produce a sentence that warranted appellate intervention.

Orders Made

  • Crown appeal against Pettersen's sentence: dismissed.
  • Crown appeal against Fell's sentence: allowed; District Court sentence quashed; Fell resentenced to a non-parole period of 3 years 3 months commencing 7 February 2008 and expiring 6 May 2011, with a balance term of 2 years 6 months; earliest parole eligibility date set at 6 May 2011.
  • Crown appeal against Bendt's sentence: allowed; District Court sentence quashed; Bendt resentenced to a non-parole period of 3 years 3 months commencing 22 July 2008 and expiring 21 October 2011, with a balance term of 2 years; earliest parole eligibility date set at 21 October 2011.

Key Takeaways

  • A sentencing judge who reduces a sentence below the accepted range specifically to qualify an offender for the Drug Court programme commits a legal error, particularly where the offender is not in fact eligible for that programme.
  • Restoration to the bottom of an accepted sentencing range is appropriate even where the numerical increase resulting from a Crown appeal might otherwise appear modest, provided there is a clear and identifiable reason the original sentence fell below that range.
  • Where an offence was dealt with separately rather than on a Form 1 due to an erroneous cause, the Court of Criminal Appeal may nonetheless dismiss a Crown appeal if the particular circumstances do not warrant adjustment.
  • Parity between co-offenders at sentence remains a relevant consideration, and the Crown's failure to challenge that parity assessment in isolation limits the scope of any appellate correction.
  • Under the Drug Court regime, eligibility requirements are a precondition to any sentence adjustment directed at facilitating entry to the programme; reducing a sentence for an ineligible offender on that basis cannot stand.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 113(2) (aggravated breaking and entering)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Court Act 1998 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- AG's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
- Callaghan v R [2006] NSWCCA 58
- Dinsdale v The Queen (2000) 202 CLR 321
- English v R [2008] NSWCCA 134
- R v Kaiva, unreported, NSWCCA, 9 November 1998