Citation: Barrett v R [2011] NSWCCA 213
Court: NSW Court of Criminal Appeal
Date: 22 September 2011
Judges: Whealy JA, Hidden J, Johnson J
Background
The applicant was sentenced in the District Court in November 2009 for five offences arising from two separate criminal episodes, together with a Form 1 matter. The most serious offence, aggravated break, enter and steal, arose from a prolonged and violent incident at a Parramatta government office in October 2006, during which the applicant and a co-offender tied up a security guard, threatened him with a knife, struck him, and stole multiple items including laptops. The remaining charges from that night covered malicious damage, taking a conveyance, and stealing from the person. A separate break-and-enter at a residential property in March 2006 formed the fifth charge.
The sentences were partially accumulated, producing an aggregate term of 6 years and 7 months, with an effective non-parole period of 5 years and 1 month. At the time of sentencing, the applicant was already serving time for unrelated offences stemming from a 2005 incident, so the new sentences were further accumulated upon that pre-existing custody. The applicant had a substantial criminal history dating to his teenage years, primarily for dishonesty offences, and had been on parole when the 2006 offences were committed.
The applicant sought leave to appeal on a single ground: that the sentencing judge erred by failing to find special circumstances justifying a departure from the standard statutory ratio between the head sentence and the non-parole period on the first charge.
Legal Issues
- Whether the accumulation of sentences, combined with the applicant's existing custodial term, gave rise to special circumstances warranting a longer-than-standard parole period on the principal charge.
- Whether the risk of institutionalisation, given the extended period of continuous custody, was a relevant consideration in finding special circumstances.
- Whether the sentencing discretion miscarried such that the Court of Criminal Appeal should intervene and re-sentence.
Decision
Hidden J, with whom Whealy JA and Johnson J agreed, found that the sentencing judge erred in failing to find special circumstances. The critical factor was the degree of accumulation across all sentences, including the continuation of an existing custodial term. Where a series of sentences is partially accumulated and then further accumulated upon an earlier term, the result can be a period of continuous custody so lengthy that the standard non-parole proportion produces an inadequate period of supervised parole on release.
The Court accepted that the danger of institutionalisation was a legitimate basis for finding special circumstances in this context. The applicant would have spent an extended period in custody by the time he became eligible for parole, and a supervised transition back into the community warranted a longer parole period than the standard proportion would otherwise allow.
On re-sentence, the Court acknowledged that the applicant's serious criminality placed a meaningful limit on any reduction. His in-custody conduct, including counselling for drug and alcohol issues and re-establishing family contacts, was taken into account. The Court determined that only a modest reduction was warranted, reducing the non-parole period on the first charge by 9 months, from 4 years to 3 years and 9 months. This yielded a parole eligibility period of 2 years and 3 months, representing approximately 25% of the aggregate sentence when continuous custody was taken as the reference point.
Orders Made
- Leave to appeal granted and the appeal allowed.
- Sentences on the second, third, fourth, and fifth charges confirmed.
- Sentence on the first charge (aggravated break, enter and steal) quashed.
- In lieu, the applicant sentenced to a non-parole period of 3 years and 9 months, commencing 21 June 2010 and expiring 20 March 2014, with a balance of term of 2 years and 3 months, commencing 21 March 2014 and expiring 20 June 2016.
Key Takeaways
- Partial accumulation of sentences, particularly where those sentences are further accumulated upon an existing custodial term, can produce a period of continuous custody that itself constitutes special circumstances under the sentencing framework.
- The risk of institutionalisation from an extended unbroken period in custody is a recognised consideration when a court assesses whether special circumstances exist, even where an offender's criminal history is significant.
- In dismissing any suggestion that a substantial reduction was warranted, the Court of Criminal Appeal confirmed that the gravity of the underlying offending places a meaningful ceiling on the extent to which a non-parole period can be reduced, even where special circumstances are established.
- Where a sentencing court fails to address special circumstances arising from accumulation, the Court of Criminal Appeal may intervene and re-sentence, but will calibrate any reduction to reflect the seriousness of the criminality involved.
- Positive in-custody conduct, such as engagement with drug and alcohol counselling and the re-establishment of family support networks, is a relevant but not determinative factor on re-sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 94, 105A, 112(1), 112(2), 154A(1), 195(1)
- Criminal Procedure Act 1986 (NSW), s 166
Cases:
- R v Barrett [2006] NSWCCA 348
- R v Simpson (1992) 61 A Crim R 58
- R v Pollock (1993) 67 A Crim R 166
- R v Nightingale [2005] NSWCCA 147
- Jackson v R [2010] NSWCCA 162
- R v Lemene [2001] NSWCCA 5, 118 A Crim R 131