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Court of Criminal Appeal 6 August 2010

Flynn v R

[2010] NSWCCA 171

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCING WHETHER SENTENCES MANIFESTLY EXCESSIVE

Citation: Flynn v R [2010] NSWCCA 171
Court: New South Wales Court of Criminal Appeal
Date: 6 August 2010
Judges: Allsop P, Price J, McCallum J

Background

The appellant pleaded guilty in the District Court to eight offences spanning March to July 2006, with a further five offences taken into account on a Form 1. The offences included break, enter and steal, car-jacking, escape from lawful custody, and two charges of using a motor vehicle as an offensive weapon to prevent lawful detention. Several offences were committed while the appellant was on parole and while he was an escapee.

Geraghty DCJ sentenced the appellant in July 2007 to a total effective sentence with a non-parole period of approximately five years eleven months. The sentencing judge also ordered compensation of $27,338.89, relating to damage caused to two police cars when the appellant rammed them with a BMW, the events underlying one of the offensive weapon charges.

The appellant sought leave to appeal, arguing the sentences were manifestly excessive, that insufficient weight was given to his health problems, that a finding of special circumstances was not properly reflected in the total sentence structure, and that the compensation order was improperly made.

  • Whether the sentences imposed were manifestly excessive
  • Whether the sentencing judge gave adequate regard to the appellant's health problems
  • Whether a finding of special circumstances was properly reflected in the total effective sentence
  • Whether the compensation direction under s 77B of the Victims Support and Rehabilitation Act 1996 was lawfully made, given the mandatory considerations in s 77D of that Act

Decision

The Court granted leave to appeal and found error in the structure of the sentence for charges 6 and 8. On resentencing, the commencement dates of those charges were adjusted, reducing the total effective non-parole period by approximately six months to 5 years and 5 months. Allsop P noted that while he had initially been inclined to reduce the non-parole period further, the objective seriousness of the offences required the formulation adopted by Price J. The six-month reduction was nonetheless regarded as meaningful in extending the period of supervised parole available to the appellant.

On the question of compensation, the judges divided. Price J accepted the order was within the sentencing judge's mandate. McCallum J, with whom Allsop P expressed some reservation on this point, considered the compensation direction was infected by legal error. The sentencing judge had made no reference to the governing legislation and the remarks on sentence disclosed nothing to indicate that the mandatory considerations under s 77D had been addressed, including the amount sought, the identity of the victim, and the appellant's capacity to pay. McCallum J concluded the discretion had miscarried and would have annulled the direction under s 9(2) of the Criminal Appeal Act 1912. Allsop P, while finding it would have been preferable to address s 77D expressly, considered the nature of the conduct described in the remarks on sentence was sufficient to demonstrate an implicit attendance to the relevant considerations.

On rehabilitation, Allsop P observed that the appellant, then aged 26, had demonstrated genuine intelligence and an apparently sincere desire for rehabilitation, notwithstanding a childhood marked by significant hardship, limited education, and years of drug and alcohol abuse. The resentencing was conducted in a way that recognised that rehabilitative need alongside the serious objective criminality involved.

Orders Made

  • Leave to extend time to appeal granted
  • Leave to appeal granted
  • Sentences on charge 6 (break, enter and steal, 12 July 2006) quashed as to commencement and expiration dates; resentenced to a non-parole period of 2 years 3 months commencing 12 September 2009, expiring 11 December 2011, with a balance of term of 1 year 3 months expiring 11 March 2013
  • Sentence on charge 8 (using an offensive weapon to prevent lawful detention, 13 July 2006) quashed; resentenced to a non-parole period of 18 months commencing 12 August 2010, expiring 11 February 2012, with a balance of term of 2 years expiring 11 February 2014
  • Total effective sentence: non-parole period of 5 years 5 months commencing 12 September 2006 and expiring 11 February 2012, with a balance of term of 2 years expiring 11 February 2014
  • Earliest parole eligibility date: 11 February 2012

Key Takeaways

  • A sentencing court making a compensation direction under s 77B of the Victims Support and Rehabilitation Act 1996 is required by s 77D to have mandatory regard to specified factors, including relevant matters the court considers significant; a failure to address those considerations at all may constitute an error vitiating the direction.
  • The Court of Criminal Appeal was divided on whether a silent compensation order can be saved by the content of the remarks on sentence; Allsop P considered it could in the circumstances, while McCallum J considered the absence of any reference to the legislation or its requirements was fatal.
  • Where a finding of special circumstances is made, the resentencing court must ensure that finding is properly reflected in the structure of the total effective sentence, not merely stated in the abstract.
  • Rehabilitation, though a weighty consideration especially for a young offender with significant personal hardship, does not override the objective criminality of serious offending; the Court adjusted the sentence to extend supervised parole time without substantially reducing the non-parole period.
  • Offences committed while on parole and while an escapee are treated as aggravating factors that bear on the appropriate non-parole period, limiting the extent to which subjective circumstances can moderate the sentence.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 6(3), 9(2)
- Crimes Act 1900 (NSW), ss 33B, 33B(1)(a), 112(1), 154A(1)(a), 154A(1)(b), 154C(1)(b), 310D(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 44, 44(2)
- Victims Support and Rehabilitation Act 1996 (NSW), ss 3, 77B, 77D, 77F

Cases:
- Connor v The Queen (2005) 158 A Crim R 389
- R v King [2003] NSWCCA 352
- R v Pham [2005] NSWCCA 94
- R v Simpson (2001) 53 NSWLR 704