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Court of Criminal Appeal 29 February 2012

O'NEILL v R

[2012] NSWCCA 22

Theft & property
CRIMINAL LAW BREAK, ENTER AND STEAL EFFECTIVE NON NOT AN OVERSIGHT BY SENTENCING JUDGE NO ERROR

Citation: O'Neill v R [2012] NSWCCA 22
Court: NSW Court of Criminal Appeal
Date: 29 February 2012
Judges: Whealy JA, RS Hulme J, Hidden J (judgment delivered by Hidden J)

Background

The applicant pleaded guilty in the District Court to break, enter and steal under s 112(1)(a) of the Crimes Act 1900, carrying a maximum of 14 years imprisonment. The offending involved a late-night break-in at a public school in Griffith, during which property worth approximately $20,000 was stolen or destroyed. Police apprehended the applicant shortly after the break-in.

The District Court judge sentenced the applicant to 3 years and 9 months imprisonment, with a non-parole period of 2 years and 9 months. That sentence was made wholly cumulative upon a series of fixed-term sentences the same judge had imposed (on appeal from the Local Court) for a cluster of earlier offences, including further break, enters and aggressive threats made to police officers while in custody.

The effect of combining all sentences was an aggregate term of 5 years and 4 months, with an effective non-parole period of 4 years and 4 months. That produced a ratio of approximately 81% between the effective non-parole period and the aggregate sentence, well above the statutory norm of 75%. The applicant sought leave to appeal, arguing the sentencing judge erred by failing to find special circumstances to address this disproportion.

  • Whether the sentencing judge erred by not finding special circumstances when the sentence for break, enter and steal was accumulated upon earlier sentences, producing an effective non-parole period exceeding 75% of the aggregate sentence.
  • Whether the judge's silence on the effect of accumulation indicated she had overlooked the issue, warranting intervention on appeal.
  • Whether the Court of Criminal Appeal should reduce the non-parole period to restore the 75% proportion, or whether a lesser aggregate non-parole period was not warranted in law under s 6(3) of the Criminal Appeal Act 1912.

Decision

Hidden J confirmed that it is well settled that the accumulation of sentences can itself constitute a special circumstance warranting an adjustment of the ratio between the non-parole period and the head sentence, at least to maintain the standard 75% proportion. However, whether such an adjustment is made depends on the circumstances of each case. Where a sentencing judge does not make the adjustment and gives no reasons, an inference of oversight may arise.

In this case, Hidden J was not persuaded that the sentencing judge had overlooked the issue. The accumulation arose from sentences the same judge had imposed in the same proceedings. Her Honour had also conducted a totality review of the overall sentencing outcome, considering both the aggregate term and the effective non-parole period. Her silence on the special circumstances question in relation to accumulation was more likely to reflect a deliberate choice than inadvertence.

Even setting that aside, the Court found that a lesser aggregate non-parole period was not warranted in law, applying s 6(3) of the Criminal Appeal Act 1912. Hidden J noted that the applicant had in fact benefited from wholly concurrent sentences for the Balranald offending, and that it would have been open to the judge to impose further accumulation for the police station threats. The overall non-parole period was not excessive given the totality of the criminal conduct.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Accumulation of sentences may constitute a special circumstance justifying a reduction in the non-parole period, at least to preserve the 75% statutory proportion. Whether it does so depends on the circumstances of the individual case.
  • Where a sentencing judge does not reduce the non-parole period to account for accumulation and gives no reasons, courts may infer oversight. However, that inference is not automatic and the surrounding context matters.
  • No error was established in this case. The Court of Criminal Appeal accepted that the sentencing judge's silence reflected a deliberate approach, informed by a totality assessment of all sentences imposed in the same proceedings.
  • In dismissing the appeal, the Court also held independently that a lesser aggregate non-parole period was not warranted in law under s 6(3) of the Criminal Appeal Act 1912, given the serious and extensive nature of the applicant's overall offending.
  • Prior decisions (including Stevens v R and France v R) confirm that appeals involving effective non-parole periods modestly above 75% may be dismissed on the basis that no lesser sentence was warranted, even where some oversight by the sentencing judge cannot be ruled out.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(1)(a), 166, 195(1)(a)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Kalache v R [2011] NSWCCA 210
- Mill v The Queen [1998] HCA 70; 166 CLR 59
- Stevens v R [2008] NSWCCA 294
- France v R [2010] NSWCCA 24