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Court of Criminal Appeal 4 July 2012

Richard Warren James CONNELLY v R

[2012] NSWCCA 144

Assault & violencePublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL INSUFFICIENT POTENTIAL PAROLE PERIOD PRINCIPLE OF TOTALITY

Citation: Connelly v R [2012] NSWCCA 144
Court: NSW Court of Criminal Appeal
Date: 4 July 2012
Judges: McClellan CJ at CL, Hidden J, Rothman J (unanimous)

Background

The appellant had been convicted of recruiting another person to carry out a criminal attack on a witness who had provided information to police leading to drug manufacturing charges against him. Specifically, the appellant sought to have the prospective victim blinded and deafened as retribution. The maximum penalty for this offence under s 351A of the Crimes Act 1900 was 7 years' imprisonment.

At the time of sentencing in March 2011, the appellant was already serving an earlier sentence of 3 years (with an 18-month non-parole period) imposed for a separate offence. The District Court backdated the new sentence to December 2010, making it wholly cumulative on the earlier sentence. The new sentence carried a non-parole period of approximately 2 years, 2 months and 22 days within a head sentence of approximately 2 years, 11 months and 21 days.

The effect of the accumulation was that the appellant's overall non-parole period across both sentences amounted to approximately 83 percent of the total combined term. The appellant sought leave to appeal on the basis that the sentencing judge failed to find special circumstances and failed to give proper effect to s 44 of the Crimes (Sentencing Procedure) Act 1999.

  • Whether the sentencing judge erred by not finding special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge adequately applied the totality principle when imposing a sentence cumulative on an existing sentence
  • Whether the accumulation of sentences had produced an overall non-parole period that was disproportionately high relative to the head sentence
  • Whether, if error was established, a lesser sentence was nonetheless unwarranted under s 6(3) of the Criminal Appeal Act 1912

Decision

Rothman J (with whom McClellan CJ at CL and Hidden J agreed) found that the sentencing judge had either overlooked the effect of accumulation on the overall non-parole ratio, or had failed to apply the totality principle. Although s 44 of the Crimes (Sentencing Procedure) Act 1999 applies to individual sentences and does not by itself prohibit a combined ratio exceeding 3:1, a sentencing court should be alert to the arithmetic consequences of accumulation on the overall proportion of time spent on parole.

The Court accepted the Crown's position that accumulation is a recognised but not mandatory basis for finding special circumstances. However, where a judge fixes the new sentence at the standard 3:1 ratio without expressly addressing the compounding effect of accumulation, and the overall ratio across both sentences substantially exceeds 3:1, the Court will more readily infer that the issue was overlooked.

The head sentence was found to be adequate and was left undisturbed. The problem was the insufficient potential parole period, which the Court found did not allow adequate time for rehabilitation and supervised reintegration into the community. Rothman J also noted a general preference for expressing sentences in years and months rather than days, and rounded the sentence accordingly.

The Crown's submission that no lesser sentence was warranted under s 6(3) of the Criminal Appeal Act 1912 was rejected. The Court substituted a new non-parole period reflecting the 3:1 ratio the sentencing judge had intended to apply.

Orders Made

  • Leave to appeal granted.
  • The sentence imposed by the District Court on 16 March 2011 was quashed.
  • In substitution, the appellant was sentenced to a non-parole period of 1 year and 9 months, commencing 16 December 2010 and concluding 15 September 2012, with a remainder of term of 14 months concluding 15 November 2013.

Key Takeaways

  • Where a new sentence is made wholly cumulative on an existing sentence, the arithmetic effect of that accumulation on the overall non-parole ratio must be expressly considered by the sentencing court.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999, the standard non-parole ratio applies to each individual sentence; the provision does not itself prohibit a combined ratio exceeding 3:1 across accumulated sentences, but the totality principle still requires the overall outcome to be just.
  • In dismissing the Crown's totality argument, the Court of Criminal Appeal confirmed that a sentencing judge who applies the standard 3:1 ratio to a new sentence without addressing the compounding effect of accumulation may be taken to have overlooked a material consideration.
  • Accumulation is a recognised basis for finding special circumstances, though no rule makes such a finding mandatory.
  • Sentences are more appropriately expressed in years and months, with any remaining days rounded down, rather than calculated to the precise day.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 351A
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW), Schedule 1, Table 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44

Cases:
- Barrett v R [2011] NSWCCA 213
- Briggs v R [2010] NSWCCA 250
- Clarke v R [2009] NSWCCA 49
- Ha v R [2010] NSWCCA 83
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Mill v The Queen (1988) 166 CLR 59
- Musgrove v R [2007] NSWCCA 21
- Pearce v R [1998] HCA 57; (1998) 194 CLR 610
- R v Dunn [2007] NSWCCA 312
- Veen v R (No 2) (1988) 164 CLR 465