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Court of Criminal Appeal 15 August 2011

Ali v R

[2011] NSWCCA 184

Assault & violenceFirearms & weaponsPublic order & justice offences
CRIMINAL LAW SEVERITY APPEAL WHETHER SENTENCE MANIFESTLY EXCESSIVE NON PAROLE PERIOD REDUCED BY 2 MONTHS

Citation: Ali v R [2011] NSWCCA 184
Court: Court of Criminal Appeal, NSW
Date: 15 August 2011
Judges: Bathurst CJ, Buddin J, Harrison J

Background

The applicant, who appeared unrepresented, sought leave to appeal against sentences imposed by Ashford DCJ in the District Court on 15 December 2010. He had pleaded guilty to two counts of reckless wounding and one count of being an accessory after the fact to the discharge of a firearm with intent to cause grievous bodily harm. The offences arose from a vehicle pursuit across Sydney suburbs during which the applicant twice left his car to stab passengers in other vehicles, culminating in a co-accused discharging a firearm and striking a victim.

The sentencing judge imposed an effective total term of 2 years and 3 months, with an effective non-parole period of 1 year and 8 months. The sentencing judge also made a finding of "special circumstances" under the Crimes (Sentencing Procedure) Act 1999, which ordinarily allows a court to reduce the proportion of time served before parole eligibility below the statutory default ratio.

  • Whether the sentencing judge erred in calculating the discount for the utilitarian value of the guilty pleas
  • Whether the sentencing judge erred in identifying aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge erred in applying specific deterrence as a sentencing purpose
  • Whether the sentencing judge's finding of "special circumstances" under s 44(2) was given effect in the sentence actually imposed
  • Whether the sentences were backdated correctly and whether they should have been ordered to be served concurrently
  • Whether the sentences were manifestly excessive overall

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal in part. The only successful ground related to the sentencing judge's treatment of "special circumstances." Although her Honour expressly found that special circumstances existed, a mathematical error in her remarks on sentence obscured the true ratio between the non-parole period and the head term.

The sentencing judge described the effective total sentence as 29 months with a non-parole period of 20 months, producing a ratio of approximately 70 per cent. In fact, the total effective sentence was 27 months, placing the actual ratio at just over 74 per cent. This was close to the statutory default and represented no meaningful allowance for the special circumstances finding.

The error was compounded when the Court considered that the applicant had been in custody since 30 September 2009, a period of over four months before the sentences formally commenced on 16 February 2010. That pre-commencement custody period was spent serving a parole balance, and the sentencing judge had not factored it into her special circumstances analysis. When this period was included, the effective ratio of non-parole period to total term rose to approximately 78 per cent, clearly inconsistent with a genuine special circumstances reduction. The Crown properly conceded that an error had occurred.

All other grounds of appeal were rejected. Harrison J found no error in the sentencing judge's approach to the guilty plea discount, aggravating factors, specific deterrence, backdating, concurrency, or the factual findings about the offences. The Court was not persuaded that the sentences were manifestly excessive apart from the limited correction to count 2.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • The sentence on count 2 (reckless wounding of the second victim) was quashed; in its place, a non-parole period of 9 months was imposed, commencing 16 November 2010 and expiring 15 August 2011
  • The head term of 18 months for count 2 was confirmed
  • The first day of eligibility for release was fixed at 15 August 2011

Key Takeaways

  • A finding of "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 must be given genuine effect in the sentence imposed; a finding that produces no appreciable departure from the statutory ratio is inconsistent with that finding.
  • Arithmetic errors in a sentencing judge's remarks on sentence can mask a failure to implement an express sentencing finding, providing a basis for appellate intervention.
  • Pre-sentence custody served on a parole balance is a relevant consideration when assessing whether a special circumstances finding has been appropriately reflected in the non-parole period to head term ratio.
  • In dismissing all other grounds, the Court of Criminal Appeal confirmed that no error arose from the sentencing judge's approach to guilty plea discounts, aggravating factors, specific deterrence, backdating, or concurrency in the circumstances of this case.
  • An unrepresented applicant's written and oral submissions were fully considered, but grounds of appeal unsupported by identifiable error will not succeed merely because they are raised.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44

Cases cited: No cases were cited in the judgment.