Citation: [2011] NSWCCA 133
Court: NSW Court of Criminal Appeal
Date: 15 June 2011
Judges: McClellan CJ at CL, Hoeben J, Grove AJ (Grove AJ delivered the principal judgment)
Background
The appellant was convicted on two separate indictments tried before Bennett DCJ in the Coffs Harbour District Court. The first trial concerned a Commonwealth offence: an attempt to dishonestly obtain approximately $500,000 in a false GST refund claim, contrary to s 134.2(1) of the Criminal Code (Cth). The second trial concerned a series of State offences arising from a violent incident on 13 November 2005 near Bowraville.
The State offences stemmed from a dispute over felled timber. While the appellant was cutting logs on land belonging to the complainant, two of the complainant's associates returned to the site. The appellant revved his chainsaw and used it to shatter the driver's window of their utility vehicle, forcing the occupants to flee through the passenger door. As they did so, the appellant's father struck each of them with a block splitter. No physical contact with the chainsaw occurred, but the two men were placed in fear by its presentation. The charges included being armed with intent to commit an indictable offence (assault), malicious damage to the vehicle, and two counts of common assault.
The District Court sentenced the appellant to 3 years 6 months imprisonment for the Commonwealth offence, commencing 30 March 2010, with a non-parole period of 2 years. The State offence sentences commenced 6 months later, on 30 September 2010, and were ordered to run concurrently with each other. The non-parole periods for all State offences were set to expire on the same date as the Commonwealth non-parole period, meaning no minimum custody time was, in practical effect, attributable exclusively to the State offences.
Legal Issues
- Whether evidence of the appellant's father's attack on the victims (using a block splitter, as they fled) was admissible at the trial for the State offences
- Whether the jury directions regarding that evidence were adequate
- Whether the sentencing structure for the State offences was adequate, given that the non-parole periods were wholly subsumed within the Commonwealth offence's non-parole period
- Whether the sentence for the Commonwealth offence was manifestly excessive
Decision
Conviction appeal (State offences): The Court dismissed the appeal against conviction. Evidence of the father's conduct with the block splitter was admissible as part of the same continuing criminal transaction. The principle established in O'Leary v The King (1946) supports the admission of evidence of related acts forming part of a connected series of events, even where those acts were committed by a co-offender. The jury directions were found to be adequate in the circumstances.
Crown sentence appeal (State offences): The Court allowed the Crown's appeal in part. The sentencing judge had expressed a clear intention that some actual period of minimum custody be referable to the State offences, but the structure of the non-parole periods failed to achieve this. The minimum terms for the State offences were entirely absorbed within the minimum term being served for the Commonwealth offence, producing a result where no custody was effectively imposed for the serious chainsaw attack. The Court found this to be an error in the sentencing structure.
Remedy on resentencing: Rather than increasing the total effective sentence, the Court addressed the error by advancing the commencement date of the State offence sentences and non-parole periods by 6 months, to 30 March 2011. This created a 6-month period of custody referable exclusively to the State offences, while respecting the totality principle and the subjective factors in the appellant's favour.
Commonwealth sentence appeal: The appellant's application for leave to appeal against the severity of the Commonwealth sentence was refused. The Court found no error warranting intervention.
Orders Made
- Leave to appeal against sentence for the Commonwealth offence refused.
- Appeal against conviction for the State offences dismissed.
- Leave to appeal against sentence for the State offences (by the appellant) refused.
- Crown appeal against sentence for the State offences allowed in part; prior orders for service of those sentences quashed and replaced as follows:
- Count 1 (armed with a chainsaw with intent to assault): non-parole period of 1 year 6 months commencing 30 March 2011, expiring 29 September 2012; balance term of 2 years commencing 30 September 2012.
- Count 2 (malicious damage to vehicle): non-parole period of 1 year 6 months commencing 30 March 2011, expiring 29 September 2012; balance term of 1 year commencing 30 September 2012.
- Count 3 (assault of first complainant): non-parole period of 1 year 6 months commencing 30 March 2011, expiring 29 September 2012; balance term of 6 months commencing 30 September 2012.
- Count 4 (assault of second complainant): non-parole period of 1 year 6 months commencing 30 March 2011, expiring 29 September 2012; balance term of 6 months commencing 30 September 2012.
- 29 September 2012 specified as the earliest date of eligibility for release to parole.
Key Takeaways
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A sentencing structure in which the non-parole periods for multiple sets of offences are entirely subsumed within a single earlier non-parole period will be inadequate where the sentencing court expressly intends that some minimum custody be referable to the later offences. The Court of Criminal Appeal corrected the error by advancing commencement dates rather than increasing the overall sentence.
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Under the O'Leary v The King principle, evidence of related criminal acts by a co-offender can be admissible as part of a connected and continuing criminal transaction, even where those acts are not directly charged against the accused.
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The fact that State offences could have been dealt with summarily in the Local Court is a relevant but not determinative factor in sentencing. It does not automatically reduce the sentence available on indictment.
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In applying the totality principle on resentencing, the Court of Criminal Appeal confirmed that subjective factors favouring the offender must still be weighed, even where a structural sentencing error is being corrected.
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Where a sentencing judge states an intention to impose cumulative sentences but the orders made do not achieve that result, the function of the appellate court is to correct the structural error, not merely to give effect to the judge's unexpressed intention.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61, 114(1)(a), 195(a)
- Criminal Code (Cth), s 134.2(1)
- Criminal Procedure Act 1986 (NSW), ss 267, 268
- Evidence Act 1995 (NSW)
Cases:
- O'Leary v The King [1946] HCA 44; (1946) 73 CLR 566
- R v El Masri [2005] NSWCCA 167
- R v Doan (2000) 50 NSWLR 115
- Hili v The Queen [2010] HCA 45
- R v Borkowski [2009] NSWCCA 102
- Adam v Regina (1999) 106 A Crim R 510
- R v Todd (1992) 2 NSWLR 517