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Court of Criminal Appeal 7 May 2010

Felton v R

[2010] NSWCCA 79

Theft & propertyTraffic & driving
CRIMINAL LAW SENTENCE

Citation: Felton v R [2010] NSWCCA 79
Court: NSW Court of Criminal Appeal
Date: 7 May 2010
Judge(s): McClellan CJ at CL, Howie J, Harrison J

Background

The appellant had been sentenced in the District Court in December 2008 for three counts of taking and driving a conveyance without consent, dangerous driving, and driving whilst disqualified. The offences occurred across two periods: a vehicle theft in June 2007, and a cluster of related offences in May 2008 that culminated in a high-speed police pursuit reaching 150 km/h in 70 km/h zones, dangerous manoeuvres, and an attempt to reverse into a police vehicle.

The District Court imposed an effective total sentence of 6 years and 6 months, with a total non-parole period of 4 years and 3 months. The appellant sought leave to appeal on three grounds, contending the sentencing judge had erred in his approach to two of the offences, failed to properly account for the appellant's mental illness, and misapplied the totality principle.

  • Whether the District Court erred in characterising the dangerous driving and driving whilst disqualified offences as being in the "worst class," while excluding relevant mitigating features
  • Whether the sentencing judge failed to properly take into account the appellant's mental illness and disorder
  • Whether the sentences were manifestly excessive in total, having regard to the totality principle

Decision

Howie J (with McClellan CJ at CL and Harrison J agreeing) allowed the appeal. His Honour found that the District Court had erred by treating the dangerous driving and driving whilst disqualified as "worst case" offences without giving adequate weight to mitigating factors, including the appellant's mental illness.

On the question of mental illness, the Court accepted that the appellant's condition was a relevant factor in sentencing. The condition reduced his moral culpability to some extent, even where it did not wholly explain his conduct. The parole condition requiring compliance with prescribed medication was imposed in recognition of the significance of the appellant's mental health to any prospect of rehabilitation.

As to totality, the Court found the overall sentence of 6 years and 6 months was disproportionate to the totality of the offending. Applying a starting point notionally equivalent to 6 years and reducing by 25 per cent to account for the guilty pleas and other factors, Howie J arrived at an effective total sentence of 4 years. The Court noted it had some doubt that special circumstances had been justifiably found by the sentencing judge in light of the risk of re-offending, but declined to disturb that finding entirely, instead restructuring the sentences so that the parole period of 12 months attached only to the final count.

Orders Made

  • Leave to appeal granted and appeal allowed
  • All District Court sentences quashed
  • The following sentences imposed in substitution:
  • Count 1 (take and drive, June 2007): fixed term of 15 months from 20 March 2008, expired 19 June 2009
  • Count 2 (take and drive, May 2008): fixed term of 15 months from 20 June 2008, expired 19 September 2009
  • Driving whilst disqualified: fixed term of 6 months from 20 September 2009, expired 19 March 2010
  • Dangerous driving: fixed term of 6 months from 20 January 2010, expired 19 July 2010
  • Count 3 (take and drive with Form 1): non-parole period of 12 months from 20 March 2010, expiring 19 March 2011, with a balance of term of 12 months from 20 March 2011
  • The appellant to be released to parole on 20 March 2011, subject to a condition requiring compliance with any medication prescribed for his mental condition

Key Takeaways

  • A sentencing court that characterises offences as falling in the "worst class" must account for all relevant mitigating features; failure to do so can constitute a ground for appellate interference.
  • Mental illness is a recognised mitigating factor in sentencing, capable of reducing moral culpability even where it does not entirely explain the offending conduct.
  • The totality principle requires a sentencing court to assess whether the aggregate of accumulated sentences is proportionate to the overall criminality involved; an excessive total can warrant a reduction even where individual sentences might be defensible in isolation.
  • Fixed terms (equivalent to a non-parole period without a subsequent parole component) are available and may be appropriate where a separate sentence on another count already carries a parole period, to avoid unnecessary complexity in the aggregate structure.
  • A parole condition requiring compliance with prescribed medication for a mental condition may be imposed where the condition is directly relevant to rehabilitation and supervision.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 19A, 154A(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 61
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- R v Twala (NSWCCA, unreported, 4 November 1994)
- R v Helmsley [2004] NSWCCA 228
- R v Engert (1995) 84 A Crim R 67
- R v Wright (1997) 93 A Crim R 48
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610