Citation: Martha Isabel RUANO v R; Martha RUANO v R [2011] NSWCCA 149
Court: NSW Court of Criminal Appeal
Date: 30 June 2011
Judges: McClellan CJ at CL, Hidden J, Grove AJ
Background
The appellant was committed to the District Court for sentence after pleading guilty in the Local Court to three charges of stealing from a person, contrary to s 94 of the Crimes Act 1900. Each offence involved the theft of cash from a vulnerable victim in or near a bank, carried out using distraction techniques as part of what was acknowledged to be a highly organised criminal syndicate. The amounts stolen ranged from $1,600 to over $21,000.
Colefax DCJ sentenced the appellant to a series of partially cumulative terms, producing an effective aggregate sentence of 3 years and 11 months, with a non-parole period of 2 years 10 months and 12 days. His Honour made a finding of special circumstances based on the appellant's lack of English and total absence of family or social support in Australia, which under the Crimes (Sentencing Procedure) Act 1999 allows a court to depart from the standard one-third ratio between the balance of term and the total sentence.
The appellant sought leave to appeal against the severity of the sentence on two grounds. The first concerned the sentencing judge's treatment of the fact that the offences could have been dealt with summarily in the Local Court. The second concerned whether the finding of special circumstances had actually been given effect in the structure of the aggregate sentence.
Legal Issues
- Whether the sentencing judge failed to give proper regard to the fact that each offence could have been dealt with summarily in the Local Court, and to the lower maximum penalties that would have applied in that jurisdiction.
- Whether the sentences were structured so as to give proper effect to the finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999, meaning whether the non-parole period was actually reduced relative to the total term to reflect that finding.
Decision
On the first ground, the Court found no error. The sentencing judge had expressly acknowledged that the offences could have been dealt with summarily, and took that into account as a relevant consideration. His Honour's decision to proceed with sentencing in the District Court was justified by the degree of planning involved and the significant amounts stolen, particularly in the third offence. The first ground was rejected.
On the second ground, however, the Court identified a problem. Although his Honour had expressly found special circumstances and plainly intended to depart from the statutory ratio in structuring the individual sentences, that departure was not achieved when the total non-parole period was measured against the total effective term. The Crown fairly conceded this, attributing the discrepancy to an arithmetical error rather than any error of principle, and did not oppose a reduction of approximately three months to the non-parole period to reflect the intended structure.
The Court noted that an adjustment of three months would not ordinarily attract appellate intervention, but given that the failure to carry out the sentencing judge's intention appeared to result from arithmetic rather than a deliberate choice, fairness required correction. The adjustment was made by varying the sentence for the third offence only, leaving the sentences for the first and second offences undisturbed.
Orders Made
- Leave to appeal against sentence granted; appeal allowed in part.
- Sentences and orders for the offences of 5 June 2008 and 28 May 2009 confirmed.
- Sentence and orders for the offence of 10 August 2009 quashed and replaced: non-parole period of 1 year 8 months commencing 14 July 2010 and expiring 13 March 2012, with a balance of term of 1 year 4 months commencing 14 March 2012.
- Earliest date of eligibility for release to parole specified as 13 March 2012.
Key Takeaways
- A sentencing judge does not err merely by sentencing in the District Court for offences that could have been dealt with summarily, provided the judge expressly acknowledges that circumstance and treats it as a relevant consideration in fixing the penalty.
- Where a finding of special circumstances is made under s 44 of the Crimes (Sentencing Procedure) Act 1999, that finding must be actually reflected in the ratio between the non-parole period and the balance of term in the aggregate sentence, not merely in the individual sentences considered separately.
- An arithmetical error that prevents a sentencing judge's stated intention from being carried into effect may warrant appellate correction even where the quantum of adjustment is modest, on grounds of basic fairness to the offender.
- The Court of Criminal Appeal confirmed that it will intervene to give effect to a sentencing judge's intended structure where the Crown concedes the discrepancy resulted from error rather than principle.
- Partial cumulation of sentences across multiple counts requires careful arithmetic to ensure that any finding of special circumstances is properly reflected in the overall non-parole period, not just across individual component sentences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 94 (stealing from the person)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (special circumstances)
Cases:
- R v Doan (2000) 50 NSWLR 115