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Court of Criminal Appeal 14 September 2011

Kalache v R

[2011] NSWCCA 210

Fraud & dishonestyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCING FOR MULTIPLE OFFENCES SUCCESSIVE SENTENCING PROCEDURES COMBINED EFFECT OF SENTENCES IMPOSED DISPROPORTIONATE NON INTERESTS OF THE COMMUNITY

Citation: Kalache v R [2011] NSWCCA 210
Court: Court of Criminal Appeal, NSW
Date: 14 September 2011
Judges: Allsop P; Simpson J; Buddin J

Background

The applicant was sentenced on four separate occasions between 2008 and 2010 for a series of offences including conspiracy to defraud, money laundering, prohibited weapons offences, and attempting to pervert the course of justice. Two District Court judges, Woods DCJ and Bennett DCJ, imposed the relevant sentences consecutively over that period. The applicant had been in continuous custody since June 2008.

No complaint was made about any individual sentence. The challenge instead focused on the combined structure of all the sentences once accumulated. When Bennett DCJ imposed the final sentence in June 2010, the non-parole period across all sentences represented 93 per cent of the total time to be served.

The applicant contended that this overall structure was flawed because it left only a minimal parole period, contrary to the requirements and purposes of the sentencing regime under the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • Whether the overall structure of consecutive sentences, resulting in a non-parole period of 93 per cent of the aggregate term, was disproportionate and therefore constituted error.
  • Whether Woods DCJ and Bennett DCJ adequately considered the question of "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 when imposing cumulative sentences.
  • Whether either sentencing judge sufficiently considered the impact of cumulation on the relationship between the non-parole and parole periods, including the purpose of rehabilitation.
  • Whether appellate intervention was warranted, and if so, how the sentences should be restructured.

Decision

Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, the balance of a sentence (the parole period) must not exceed one-third of the non-parole period unless special circumstances exist. Absent such circumstances, a non-parole period should not be less than 75 per cent of the total sentence. The Court noted that the concept of special circumstances bears directly on the justice of an overall sentence and on the sentencing purpose of rehabilitation.

The majority (Allsop P and Buddin J, Simpson J dissenting on the question of error by Woods DCJ) found that Woods DCJ failed to give adequate consideration to the overall effect of his sentences on the non-parole to parole ratio when imposing cumulative terms. The Court noted that a sentencing judge's failure to address special circumstances in the course of imposing cumulative sentences will, in all likelihood, reveal error in the exercise of the sentencing discretion. The reasons given by Woods DCJ, and the structure of the sentences he imposed, did not demonstrate that he had considered the cumulative impact on the aggregate sentence.

On the question of Bennett DCJ's sentence, Allsop P expressed difficulty in finding error given the way submissions had been put to that court, but the majority nonetheless concluded that intervention was warranted by the identified error of Woods DCJ. The Court emphasised that while the applicant's offences revealed a propensity for dishonesty and there was limited evidence of rehabilitation prospects, neither sentencing judge had found that rehabilitation was so unlikely as to be irrelevant to the sentencing exercise.

On resentencing, the Court declined to reduce the effective total head sentence of 6 years and 2 months. It reduced the effective non-parole period to 5 years, acknowledging this still exceeded 75 per cent of the head sentence but represented the minimum period warranted in the circumstances. The restructured sentence preserved a meaningful parole period to serve the purpose of rehabilitation through supervised release.

Orders Made

  • Leave to appeal granted.
  • Appeals allowed.
  • District Court sentences quashed and the following substituted:
  • For perverting the course of justice: fixed term of 9 months, commencing 25 August 2010, expiring 25 May 2011.
  • For each of three money laundering offences: concurrent fixed terms of 2 years, commencing 25 February 2011, expiring 25 February 2013.
  • For conspiracy to defraud: non-parole period of 1 year and 8 months commencing 25 October 2011, expiring 24 June 2013, with a total term of 2 years and 10 months expiring 24 August 2014.
  • The applicant to be eligible for release on parole on 24 June 2013.

Key Takeaways

  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must consider the question of special circumstances not only within individual sentences but also when imposing cumulative sentences, because cumulation can distort the overall non-parole to parole ratio in ways that produce unjust aggregate outcomes.
  • A failure to address special circumstances in the course of imposing cumulative sentences will, in all likelihood, constitute error in the exercise of the sentencing discretion, even where no individual sentence is itself flawed.
  • The Court of Criminal Appeal confirmed that the reasons given for sentence are critical in this context: the appellate court will scrutinise those reasons to determine whether the sentencing judge genuinely turned his or her mind to the overall effect of accumulated terms.
  • Rehabilitation remains a legitimate sentencing purpose under s 3A(d) of the Crimes (Sentencing Procedure) Act 1999 unless a sentencing court positively finds that it is so unlikely as to be irrelevant; the mere existence of dishonesty offences and limited rehabilitative evidence does not extinguish it.
  • On resentencing following error in the cumulation process, the Court declined to disturb the total head sentence but restructured the non-parole period to preserve a meaningful parole period, even where that parole period still fell short of the standard one-quarter proportion.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44, 45
- Criminal Appeal Act 1912 (NSW)
- Sentencing Act 1989 (NSW), s 5(2)

Cases:
- Mill v The Queen [1988] HCA 70; 166 CLR 59
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
- The Queen v Shrestha [1991] HCA 26; 173 CLR 48
- Johnson v The Queen (2004) 78 ALJR 616
- Maglis v R [2010] NSWCCA 247
- Briggs v R [2010] NSWCCA 250
- Buadromo v R [2007] NSWCCA 43
- Caristo v R [2011] NSWCCA 7
- Diesing v R [2007] NSWCCA 326
- Dunn v R [2007] NSWCCA 312
- Flynn v R [2010] NSWCCA 171
- IS v R [2011] NSWCCA 142
- Khoury v R [2011] NSWCCA 118
- MAJW v R [2009] NSWCCA 255
- Musgrove v The Queen [2007] NSWCCA 21; (2007) 167 A Crim R 424
- Perry v The Queen [2006] NSWCCA 351