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10
Court of Criminal Appeal 13 February 2012

Rios v Regina

[2012] NSWCCA 8

Theft & property
CRIMINAL LAW OFFENCES OF STEALING FROM PERSON WHERE THE NON

Citation: Rios v Regina [2012] NSWCCA 8
Court: NSW Court of Criminal Appeal
Date: 13 February 2012
Judges: Bathurst CJ, Simpson J, Adamson J

Background

The applicant was convicted of three offences of stealing from person under s 94 of the Crimes Act 1900 (NSW), each carrying a maximum penalty of 14 years. The offences involved coordinated pickpocketing and distraction-theft operations targeting elderly or occupied victims at bank branches and a shopping centre. The applicant pleaded guilty in the Local Court and was sentenced in the District Court, receiving a 25 per cent discount for the guilty plea.

The sentencing judge structured three individual sentences, each with a non-parole period of approximately 75 per cent of the total term. Each sentence was then partially accumulated on the previous one by six months. The resulting aggregate sentence was a total term of 4 years, 3 months and 16 days, with an effective non-parole period of 3 years, 5 months and 12 days. That aggregate non-parole period represented approximately 80 per cent of the total sentence.

The applicant sought leave to appeal, arguing the sentencing judge failed to properly consider whether special circumstances existed within the meaning of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The co-offender had already succeeded on a related ground in separate proceedings before the Court of Criminal Appeal.

  • Whether the sentencing judge was required to consider special circumstances when the partial accumulation of sentences caused the aggregate non-parole period to exceed 75 per cent of the total aggregate sentence
  • Whether the failure to address that excess proportion constituted a sentencing error warranting appellate intervention

Decision

Under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the balance of term of a sentence must not exceed one-third of the non-parole period, unless the court finds special circumstances and records its reasons. Put another way, the default ratio caps the non-parole period at 75 per cent of the total sentence. A non-parole period exceeding that proportion requires express reasons, and a failure to provide them gives rise to an inference of arithmetical error.

The Court of Criminal Appeal found that the sentencing judge had not addressed the effect of the partial accumulation on the aggregate ratio. Although each individual sentence was structured at approximately 75 per cent, the mechanics of partial accumulation meant the aggregate non-parole period rose to around 80 per cent. That outcome required the sentencing judge either to find special circumstances justifying the departure or to restructure the sentences to bring the aggregate within the statutory default. Neither occurred.

The Court noted the difference between 75 per cent and 80 per cent is not trivial. A non-parole period at 80 per cent of the total sentence falls on one side of the divide between a sentence that needs no justification and one that requires a recorded finding of special circumstances. The error infected the exercise of sentencing discretion and warranted correction.

The Court intervened by reducing the non-parole period for the third count to bring the aggregate proportion back to 75 per cent. The Court also observed, without making it determinative in this case, that expressing sentences in years, months and days (rather than rounding to years and months) adds unnecessary complication to the sentencing process and ought to be discouraged.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld.
  • The non-parole period for the offence of stealing on 10 August 2009 varied to 2 years, 3 months and 17 days, commencing 14 July 2010 and expiring 30 October 2012.
  • All other sentences confirmed.

Key Takeaways

  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the default position caps the non-parole period at 75 per cent of the total sentence; departing from that ratio requires a court to find special circumstances and record reasons.
  • Where individual sentences are structured at the statutory default ratio but then partially accumulated, the resulting aggregate non-parole proportion may exceed 75 per cent. A sentencing court must address that aggregate proportion and cannot rely on the individual sentences being correctly structured.
  • Failure to provide reasons when an aggregate non-parole period exceeds 75 per cent of the aggregate term gives rise to an inference of arithmetical error, and the Court of Criminal Appeal treated this as a reviewable sentencing error.
  • The Court of Criminal Appeal corrected the error by reducing the non-parole period for the final count to restore the aggregate ratio to 75 per cent, leaving all other sentences undisturbed.
  • The Court also observed that specifying sentences in years, months and days, rather than in years and months only, creates unnecessary complexity in the sentencing process and should generally be avoided.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 94 (stealing from person)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (non-parole period and balance of term)

Cases:
- Ruano v R [2011] NSWCCA 149
- Barrett v R [2011] NSWCCA 213
- Dunn v R [2007] NSWCCA 312
- R v Nightingale [2005] NSWCCA 147
- Wakefield v R [2010] NSWCCA 12