Citation: Thorpe v Regina [2010] NSWCCA 261
Court: NSW Court of Criminal Appeal
Date: 30 November 2010
Judge(s): Simpson J, Kirby J, Schmidt J
Background
The appellant had committed two sets of offences approximately five weeks apart in April and May 2007. The April 2007 offences, which included aggravated break and enter and maliciously inflicting grievous bodily harm on elderly residents of an aged care home, were dealt with first. In January 2008, Donovan DCJ sentenced the appellant to a total of four years imprisonment on each count, served partially concurrently, resulting in a combined non-parole period of three years and three months.
The May 2007 offence, stealing from a dwelling house, was charged separately and not until October 2008, after the appellant was already in custody. Sorby DCJ sentenced the appellant in August 2009 for that offence, imposing a three-year term with a two-year non-parole period, accumulated in part on the sentences already being served.
The appellant challenged that sentence on the basis that the sentencing judge found "special circumstances" under the Crimes (Sentencing Procedure) Act 1999, which permits departure from the standard ratio between non-parole period and total sentence, but then failed to give that finding any practical effect when setting the overall non-parole period across all sentences.
Legal Issues
- Whether the sentencing judge erred by finding special circumstances but failing to give effect to that finding in the context of the total effective sentence being served by the appellant.
- Whether the accumulation of the non-parole period for the May 2007 offence onto the earlier sentences resulted in an overall non-parole period that exceeded the statutory ratio without justification.
- How the totality principle should be applied where a later offence is sentenced separately due to charging delays, rather than alongside earlier offences.
Decision
The Court of Criminal Appeal granted leave to appeal and upheld the ground of appeal. When Sorby DCJ found special circumstances, that finding required adjustment of the overall non-parole period across the total effective sentence, not merely of the individual sentence being imposed. By accumulating the non-parole period for the May 2007 offence in the manner he did, the sentencing judge produced an overall ratio that exceeded the statutory formula, making the special circumstances finding practically ineffective.
Simpson J and Kirby J agreed that the error was established, though they differed slightly in their reasoning. Kirby J took the view that, had all three offences been dealt with together in January 2008, no finding of special circumstances would have been warranted, and this should inform the correct approach to the totality principle. The appropriate overall non-parole period, applying the statutory ratio to the aggregate sentence of five years and six months, was four years and two months.
Simpson J disagreed with one aspect of Kirby J's reasoning, namely the suggestion that the court should project backwards to assume no special circumstances would have been found if all offences had been dealt with together. Simpson J emphasised that the appellant's circumstances had genuinely changed by the time of the second sentencing, and she was entitled to the practical benefit of the special circumstances finding, not a merely theoretical one. Despite that disagreement, Simpson J agreed that the orders proposed by Kirby J produced the correct outcome in the circumstances.
Orders Made
- Leave to appeal granted.
- The appeal allowed.
- The sentence imposed by Sorby DCJ on 11 August 2009 was quashed and replaced with a term of three years imprisonment, with a non-parole period running from 24 October 2010 to 23 November 2011, and an additional term of one year and eleven months expiring on 23 October 2013. The appellant was to be admitted to parole on 23 November 2011.
Key Takeaways
- A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 must produce a practical reduction in the overall non-parole period when considered across the total effective sentence. A finding that is applied only to a single component sentence, while leaving the aggregate non-parole ratio unchanged or worsened, is legally ineffective.
- Where a later offence is sentenced separately due to delays in charging, the sentencing court is still required to apply the totality principle with reference to the overall non-parole period that will result from any accumulation.
- The Court of Criminal Appeal confirmed that the High Court's approach in Mill v The Queen remains relevant: accumulation decisions must be reviewed to ensure the aggregate non-parole period does not unjustifiably depart from the statutory ratio.
- A divergence emerged among the judges as to whether the sentencing court should project backwards to what would have happened had all offences been dealt with together. Kirby J considered that exercise relevant; Simpson J did not, treating the appellant's changed circumstances at the time of the second sentencing as a legitimate basis for the special circumstances finding.
- Charging delays that prevent offences from being sentenced together do not extinguish an offender's entitlement to the benefit of a special circumstances finding, but they do require careful attention to how that finding translates into the practical structure of accumulated sentences.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Crimes Act 1900 (NSW), ss 35(1)(b), 112(2), 148
Cases:
- Mill v The Queen (1988) 166 CLR 59
- R v Todd (1982) 2 NSWLR 517
- R v Bolamatu [2002] NSWCCA 454
- Regina v LWP [2003] NSWCCA 215
- Lupton v Regina [2003] NSWCCA 200
- R v Keen [2004] NSWCCA 86
- R v So [2004] NSWCCA 362
- R v Cramp [2004] NSWCCA 264
- R v Ibrahim [2005] NSWCCA 43
- Cicekdag v Regina [2007] NSWCCA 218
- Robertson v R [2009] NSWCCA 38
- Clarke v R [2009] NSWCCA 49
- Jamie Peter Dolman v R [2010] NSWCCA 137