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39
Court of Criminal Appeal 23 August 2010

Jackson v R

[2010] NSWCCA 162

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE OFFENCES AGAINST THE PERSON PROPERTY OFFENCES CIRCUMSTANCES OF AGGRAVATION FORM 1 OFFENCES

Citation: Jackson v R [2010] NSWCCA 162
Court: NSW Court of Criminal Appeal
Date: 23 August 2010
Judge(s): McClellan CJ at CL, Simpson J, Fullerton J (Fullerton J delivered the principal judgment, with the others agreeing)

Background

The appellant pleaded guilty in the District Court to a series of serious offences committed over roughly twelve months between August 2005 and September 2006, all while on parole. The offences included two counts of aggravated break and enter, a break enter and steal, an entering with intent to steal, and a robbery. Several victims were elderly, and some offences involved a co-offender. Additional minor offences were taken into account on a Form 1 (a procedure in NSW sentencing where offences not separately charged are acknowledged and taken into account in fixing the sentence for a related charge).

Hughes DCJ sentenced the appellant on 18 December 2008 to an aggregate term of 9 years and 6 months, with an effective non-parole period of 7 years and a balance of term of 2 years and 6 months. This produced a ratio of approximately 74 per cent between the non-parole period and the total sentence, a variation of only about six weeks from the standard statutory ratio.

The appellant appealed against the sentence on the ground that the sentencing judge erred by failing to give proper effect to his own finding that special circumstances existed. The sentencing judge had found special circumstances but made only a minimal departure from the standard statutory ratio between non-parole period and balance of term.

  • Whether the sentencing judge erred in failing to give sufficient effect to his finding of special circumstances, particularly having regard to the appellant's risk of further institutionalisation
  • Whether the resulting ratio between the non-parole period and the balance of term adequately reflected the reasons for which special circumstances were found
  • Whether the Court of Criminal Appeal should intervene and re-sentence on the Doonside offence so as to extend the balance of term beyond the statutory ratio

Decision

Fullerton J, with whom the other members of the Court agreed, found that the sentencing judge had made a finding of special circumstances but provided only sparse reasons for doing so. That paucity of reasoning made it difficult to assess whether the resulting six-week extension to the parole period was an adequate practical reflection of the finding. The Court considered this to be a basis on which it could intervene under section 6(3) of the Criminal Appeal Act 1912.

The Court accepted that special circumstances were properly available, principally because of the appellant's risk of further institutionalisation given his extensive history of custody. The Court also took into account the appellant's established family support and expressed intention to remain drug-free upon release. Together, these factors supported an extended period of supervision in the community following release on parole.

The Court concluded that the sentence for the most heavily weighted count, the Doonside aggravated break and enter, should be restructured to reduce the non-parole period from 5 years to 4 years and 6 months, with a corresponding increase in the balance of term from 2 years and 6 months to 3 years. This altered the overall effective sentence to a non-parole period of 6 years and 6 months with a balance of term of 3 years.

The Court was satisfied that the adjusted effective non-parole period of 6 years and 6 months remained an appropriate reflection of the seriousness and repeated nature of the offending. Sentences for the other four offences were affirmed.

Orders Made

  • Leave to appeal against sentence granted
  • Sentences for the Kirribilli, Kings Park, Redfern, and Glenbrook offences affirmed
  • Sentence for the Doonside offence quashed and replaced with a non-parole period of 4 years and 6 months commencing 26 September 2008 and expiring 25 March 2013, with a balance of term of 3 years expiring 25 March 2016
  • Effective sentence: non-parole period of 6 years and 6 months commencing 26 September 2006 and expiring 25 March 2013, with a balance of term of 3 years expiring 25 March 2016

Key Takeaways

  • A finding of special circumstances requires more than a token departure from the standard statutory ratio between non-parole period and balance of term. Where only minimal adjustment is made, the sentencing court's reasons for the finding become critical to appellate review.
  • Where a sentencing judge finds special circumstances but provides sparse reasons, an appellate court may find it difficult to assess whether the practical outcome adequately reflects that finding, and intervention may be warranted under section 6(3) of the Criminal Appeal Act 1912.
  • Risk of institutionalisation, arising from an offender's extensive history of custody, can constitute special circumstances justifying an extended balance of term to allow greater post-release supervision.
  • An extended balance of term serves the purpose of providing an offender with a longer period of supervised reintegration in the community. The Court treated this as a legitimate sentencing consideration distinct from the objective gravity of the offending.
  • Reducing the non-parole period on one count within a partially accumulated structure can achieve the practical effect of lengthening the overall balance of term without necessarily reducing the total period of imprisonment, provided the effective non-parole period remains proportionate to the seriousness of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 94, 111, 112(1), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Pearce v R [1998] HCA 57; 194 CLR 610
- R v Dorsett [2002] NSWCCA 326
- R v Gordon [2004] NSWCCA 45
- R v Hooper [2004] NSWCCA 10
- R v LWP [2003] NSWCCA 215
- R v Lemene [2001] NSWCCA 5; 118 A Crim R 131
- R v Nykolyn [1999] NSWCCA 39
- R v SJD [2004] NSWCCA 182
- R v Street [2005] NSWCCA 139
- R v Taufua [2001] NSWCCA 411
- Watts v R [2007] NSWCCA 153