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Court of Criminal Appeal 10 August 2011

Clayton Matthew KEAN v R

[2011] NSWCCA 136

Theft & property
CRIMINAL LAW PROPERTY OFFENCES BURGLARY AND LIKE OFFENCES SENTENCING RELEVANT SENTENCING CONSIDERATIONS FAILURE TO CONSIDER NOT FATAL.

Citation: Clayton Matthew KEAN v R [2011] NSWCCA 136
Court: Court of Criminal Appeal, NSW
Date: 10 August 2011
Judges: Campbell JA, RS Hulme J, Adams J

Background

The appellant was convicted of three offences: a breaking and entering offence (Count 1, maximum 20 years), a further property offence (Count 3, maximum 5 years), and a charge dealt with on a Court Attendance Notice (CAN) under s 112(1) of the Crimes Act 1900 (maximum 14 years). A Form 1 offence was also taken into account on the CAN matter.

The trial judge sentenced the appellant to a non-parole period of 2 years 6 months on Count 1, a 12-month fixed term on Count 3, and a non-parole period of 2 years 6 months on the CAN offence. The appellant had a significant and serious prior criminal history.

The appellant sought leave to appeal on two grounds: first, that the sentencing judge failed to consider that the CAN offence and Count 3 could have been dealt with in the Local Court (where the maximum penalty would have been capped at 2 years); and second, that the sentences were manifestly excessive.

  • Whether the sentencing judge erred by failing to take into account that the CAN offence could have been prosecuted in the Local Court, where a lower maximum penalty would have applied under s 267(2) of the Criminal Procedure Act 1986
  • Whether the sentences imposed were manifestly excessive, warranting resentencing
  • How a total sentence of 3 years for Count 1 should be divided between the non-parole period and the balance of term
  • How multiple sentences ought to be arranged so that an identifiable period is attributable to each offence

Decision

Ground 1 (Local Court jurisdiction): All three judges agreed that the sentencing judge had failed to consider that the CAN offence could have been dealt with in the Local Court, where the maximum sentence was 2 years. However, the judges differed on the consequences of that failure. Adams J concluded the error was of no practical consequence, because the appellant's criminal history made the Local Court an inappropriate forum in any event. RS Hulme J agreed with that reasoning but, on the precise language of the ground of appeal, held that the ground was technically made out, while acknowledging the error was inconsequential. Campbell JA took a different view, finding that because the trial judge had imposed 5 years with a non-parole period of 2 years 6 months, he could not positively conclude the error had not prejudiced the appellant, and so upheld this ground as an independent reason for resentencing.

Ground 2 (manifest excess): All three judges agreed the sentences were manifestly excessive and that resentencing was required. The court ultimately agreed on a total head sentence of 3 years for Count 1, reflecting the objective seriousness of the offending relative to the full range of conduct captured by the offence, and the appellant's subjective circumstances (both those favouring and those weighing against leniency, including his significant criminal record). The non-parole period for Count 1 was set at 2 years 3 months, well below the standard non-parole period of 5 years.

Arrangement of sentences: The court confirmed that where multiple sentences are imposed, they should ordinarily be arranged so that there is an identifiable period during which the offender is serving a non-parole period attributable solely to each individual offence. This principle may be departed from where totality considerations or a very large number of offences make it impractical, but neither factor applied here.

Resentencing: Campbell JA and RS Hulme J agreed on final orders. The effective total sentence became 4 years and 9 months with a non-parole period of 2 years and 9 months, reflecting downward adjustments for the accumulation of sentences and the difficulties the appellant would face in pursuing rehabilitation.

Orders Made

  • Leave to appeal granted
  • Sentence on Count 1 quashed; replaced with a non-parole period of 2 years 3 months commencing 1 December 2008, with a balance of term of 9 months commencing 1 March 2011
  • 12-month fixed term for Count 3 varied to commence 1 September 2010
  • Sentence on the CAN offence (including the Form 1 offence) quashed; replaced with a non-parole period of 9 months commencing 1 September 2011 and a balance of term of 2 years commencing 1 June 2012
  • Effective total sentence: 4 years 9 months with a non-parole period of 2 years 9 months

Key Takeaways

  • Where a sentencing judge fails to consider that an offence could have been prosecuted in the Local Court (with its lower maximum penalty), that omission constitutes an error of principle. However, as this decision illustrates, the error will not necessarily affect the outcome where the offender's criminal history would have made the Local Court an inadequate and inappropriate forum regardless.
  • Campbell JA applied a stricter test, finding that an error of principle requires the appeal to be upheld unless the court can reach a positive conclusion that the error did not prejudice the appellant. This produced a difference in reasoning among the bench, though all agreed resentencing was needed.
  • When sentencing for multiple offences, the court confirmed a principle that sentences should be arranged so that an identifiable portion of the total custodial term is attributable solely to each individual offence, giving both the offender and the community visibility of the consequence for each matter.
  • A non-parole period substantially below the standard non-parole period may be appropriate where the objective seriousness of the offending sits well below the mid-range for the offence, even where the offender carries a significant criminal history.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999, the statutory ratio between the non-parole period and the balance of term may require adjustment where sentences are accumulated, and further adjustment may be warranted by a finding of special circumstances such as significant rehabilitation challenges.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(1), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Procedure Act 1986 (NSW), s 267(2)

Cases:
- Bonwick v R [2010] NSWCCA 177
- R v Harris [2007] NSWCCA 130
- R v Palmer [2005] NSWCCA 349
- R v Ponfield & Others (1999) 48 NSWLR 327