Citation: Foster v R [2011] NSWCCA 285
Court: Court of Criminal Appeal, New South Wales
Date: 20 December 2011
Judges: McClellan CJ at CL, Adams J, Hoeben J
Background
The applicant was convicted by a jury of two serious offences committed on 2 October 2009. The first was taking and driving a motor vehicle without the owner's consent whilst armed with an offensive weapon (a pair of scissors), which carries a maximum penalty of 14 years and a standard non-parole period of five years. The second was using an offensive weapon to avoid arrest, which carries a maximum penalty of 12 years with no standard non-parole period.
The offences arose from a confronting sequence of events. The applicant forced his way into a woman's car at knifepoint, drove erratically and collided with several objects, then fled on foot and made multiple threatening charges at a police officer with the scissors before being subdued. The applicant was heavily intoxicated throughout.
At first instance, the sentencing judge imposed an effective head sentence of 11 years with a non-parole period of eight years. The applicant sought leave to appeal, challenging the approach to the standard non-parole period, the treatment of aggravating features, and whether the sentences were manifestly excessive.
Legal Issues
- Whether the sentencing judge erred by treating the standard non-parole period as a starting point for a mid-range offence on count 1, contrary to the High Court's guidance in Muldrock v R [2011] HCA 39
- Whether the sentencing judge impermissibly double-counted elements of the offences as aggravating features
- Whether the sentence imposed for count 2 (resisting arrest with an offensive weapon) was manifestly excessive
Decision
All three judges agreed that the sentencing judge's approach to count 1 was not in accordance with the High Court's decision in Muldrock v R, which had authoritatively settled how standard non-parole periods are to be used in sentencing. The standard non-parole period is not a mechanical starting point for a mid-range offence; it is one of two prescribed statutory reference points that must be taken into account alongside the full range of sentencing factors. Because this error was established on count 1, Adams J found it unnecessary to resolve the first two grounds of appeal in relation to that count.
Adams J and Hoeben J also agreed that the sentence on count 2 was manifestly excessive, requiring resentencing on both counts. However, the three judges diverged on the appropriate substitute sentences. Adams J proposed lighter terms, influenced in part by his application of the principle of parsimony and a view that the applicant's intoxication reduced the level of danger posed to the victims. Hoeben J disagreed on both points, and McClellan CJ at CL expressly rejected the parsimony approach, noting it had been authoritatively rejected by this Court in R v Blundell and by Basten JA in Kelly v The Queen.
McClellan CJ at CL also firmly rejected any suggestion that the applicant's intoxication made him less dangerous to his victims. His Honour reasoned that intoxication removes inhibitions and is therefore more likely to increase the potential for serious harm than to reduce it. Hoeben J similarly concluded that intoxication explained the offending but did not excuse it, and assessed the risk to both the victim and the police officer as more serious than Adams J had.
The majority (McClellan CJ at CL agreeing with Hoeben J's proposed orders) settled on resentencing terms that gave greater weight to personal deterrence and the gravity of the applicant's conduct. The effective overall sentence became nine years with a non-parole period of six years, down from the original 11 years with an eight-year non-parole period.
Orders Made
- Leave to appeal granted and the appeal allowed.
- Sentence on count 1 quashed and replaced with a non-parole period of 5 years commencing 2 October 2009, expiring 1 October 2014, with a balance of term of 2 years expiring 1 October 2016.
- Sentence on count 2 quashed and replaced with a non-parole period of 2 years commencing 2 October 2013, expiring 1 October 2015, with a balance of term of 3 years expiring 1 October 2018.
- Effective overall sentence: 9 years with a non-parole period of 6 years; eligible for parole on 1 October 2015.
Key Takeaways
- The Court of Criminal Appeal confirmed that treating a standard non-parole period as a mechanical starting point for a mid-range offence is an error of principle, consistent with the High Court's ruling in Muldrock v R [2011] HCA 39.
- A sentencing court must treat the standard non-parole period as one of two statutory reference points and weigh it alongside all relevant sentencing factors, rather than anchoring the sentence to it and adjusting from there.
- The principle of parsimony, as articulated by Adams J in DB v The Queen, did not attract majority support in that case and was authoritatively rejected by the Court of Criminal Appeal in R v Blundell (2008) and by Basten JA in Kelly v The Queen; McClellan CJ at CL declined to apply it here.
- Intoxication at the time of offending does not automatically reduce the assessed level of danger posed by an offender, and the majority expressly rejected the proposition that being intoxicated made this applicant less dangerous to his victims.
- Hoeben J declined to endorse Adams J's detailed analysis of Muldrock v R, preferring to reserve a comprehensive examination of that decision for a case where the issue was fully argued.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166
Cases:
- Muldrock v R [2011] HCA 39
- R v Muldrock [2010] NSWCCA 106
- R v Blundell (2008) NSWCCA 63; 70 NSWLR 660
- DB v The Queen (2007) NSWCCA 27; 167 A Crim R 393
- Kelly v The Queen (2007) NSWCCA 357
- Markarian v R [2005] HCA 25; 228 CLR 357
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v AJP [2004] NSWCCA 434; 150 A Crim R 575
- R v Biddle [2011] NSWSC 1262