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Court of Criminal Appeal 14 October 2010

R v Jared Deane PATERSON

[2010] NSWCCA 233

Assault & violenceTheft & property
CRIMINAL LAW APPEAL SENTENCE CROWN APPEAL CONCURRENT NON PAROLE PERIODS

Citation: R v Jared Deane PATERSON [2010] NSWCCA 233
Court: New South Wales Court of Criminal Appeal
Date: 14 October 2010
Judge(s): Hodgson JA, Rothman J, Barr AJ

Background

The respondent pleaded guilty in the District Court to two counts of armed robbery offences committed within a fortnight of each other in June 2009. The first involved robbing a bakery worker at knifepoint, stealing $90. The second involved ordering a taxi, then threatening the driver with a knife and wounding him in the arm during a struggle.

Murrell SC DCJ sentenced the respondent to a total effective sentence of 6 years' imprisonment. The non-parole period for the second, more serious offence (armed robbery with wounding under s 98 of the Crimes Act 1900) was set to run wholly concurrently with the non-parole period for the first offence, meaning the two non-parole periods expired on the same date. Significant subjective factors favoured the respondent, including a history of drug use and strong prospects for rehabilitation.

The Crown appealed the sentence on Count 2 to the Court of Criminal Appeal, arguing the structure was flawed and the overall sentence manifestly inadequate.

  • Whether the sentencing judge erred by setting the non-parole period for Count 2 to run wholly concurrently with the non-parole period for Count 1, effectively imposing no additional mandatory custodial component for a separate and more serious offence involving a different victim
  • Whether the sentence imposed on Count 2 was manifestly inadequate
  • Whether the overall sentence structure departed impermissibly from the principles in Pearce v The Queen, which generally requires some additional custodial recognition for separate criminal acts

Decision

The Court of Criminal Appeal acknowledged that the sentence structure was not the preferred orthodox approach. Under the Pearce principles, separate criminal acts ordinarily warrant some additional custodial component. The Court agreed the structure produced an overall sentence that was less than what Rothman J said he personally would have imposed, and that it gave no separate mandatory punishment for the s 98 offence.

Despite those concerns, the Court declined to interfere. Rothman J held that sentencing judges must be afforded significant flexibility within the statutory framework, consistent with the High Court's observations in Johnson v R. The strong subjective factors in this case, including the need for an extended parole period to support rehabilitation and the plea of guilty, brought the sentence within the range legitimately available to the sentencing judge.

The Court found the head sentence for Count 2 was not manifestly inadequate, placing the offence at the lower end of the mid-range for s 98 offences. While the sentence structure could have been different, the Court concluded that intervention would amount to mere tinkering and that a more severe sentence was not warranted within the meaning of s 6(3) of the Criminal Appeal Act 1912.

Orders Made

  • The appeal is dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that sentencing judges retain meaningful flexibility in structuring sentences, even where the result departs from the orthodox approach in Pearce v The Queen.
  • A wholly concurrent non-parole period for a separate offence involving a different victim does not automatically warrant appellate interference if compelling subjective circumstances bring the overall sentence within the range available to the sentencing judge.
  • The Court of Criminal Appeal will not intervene in a Crown appeal merely because it would have structured a sentence differently or arrived at a higher result, where the departure does not rise above the level of "mere tinkering."
  • Significant subjective factors, including a guilty plea, the need for extended parole supervision, and strong rehabilitation prospects, can justify a sentence at the lower end of the available range even for serious offences under s 98 of the Crimes Act 1900.
  • Under s 6(3) of the Criminal Appeal Act 1912, the appellate court must be satisfied that a more severe sentence is warranted before it will intervene on a Crown appeal; that threshold was not met here.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97, 98
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5D, 6(3)

Cases:
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Johnson v R [2004] HCA 15; (2004) 78 ALJR 616
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Henry [2007] NSWCCA 90
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Clare v The Queen [2008] NSWCCA 30; (2008) 181 A Crim R 450
- R v Tory [2006] NSWCCA 18