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District Court 25 October 2012

R v Francis

[2012] NSWDC 306

Assault & violenceDomestic & family violence
CRIMINAL LAW APPEALS AGAINST SENTENCE NON PAROLE PERIOD 80% OF OVERALL SENTENCE NO SPECIAL CIRCUMSTANCES FOUND

Citation: R v Francis [2012] NSWDC 306
Court: District Court of New South Wales
Date: 25 October 2012
Judge: Cogswell SC DCJ

Background

The appellant had a lengthy criminal record involving multiple assaults, affrays, offences against police, and contraventions of apprehended domestic violence orders. He appeared before the District Court on appeal from sentences imposed in the Local Court at Bourke on 3 September 2012. Those sentences related to offences committed against the same victim on two separate occasions in August 2011 and May 2012.

The Local Court had dealt with both a breach of suspended sentences (connected to the August 2011 offences) and the fresh offences from May 2012. For the May 2012 offences, the magistrate imposed two 9-month sentences with 6-month non-parole periods. The overall effective sentence amounted to approximately 17 months, with an effective non-parole period of around 14 months, representing approximately 82% of the total sentence.

The appellant argued on appeal that the non-parole periods were too long and should be reduced. His counsel pointed to drug and alcohol counselling needs and the appellant's age of 35 as special circumstances justifying a larger gap between the non-parole period and the head sentence.

  • Whether the non-parole periods, as fixed by the Local Court, were excessive as a proportion of the overall sentences
  • Whether special circumstances existed to justify a non-parole period below the standard proportion set under the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the overall sentences imposed by the magistrate were otherwise appropriate

Decision

The District Court accepted that the overall sentences totalling 17 months were appropriate, given the appellant's extensive criminal history and the nature of the violence inflicted on his partner on both occasions. The court found no basis to interfere with the head sentences themselves or the sentences and bond relating to the August 2011 offences and the domestic violence order contravention.

The court did, however, find that fixing the non-parole period at approximately 82% of the overall sentence was incorrect. Under the Crimes (Sentencing Procedure) Act 1999 (NSW), the standard non-parole period is set at 75% of the head sentence, and departure from that proportion requires a finding of special circumstances. No such special circumstances were established here. The appellant's need for drug and alcohol counselling and his age of 35 did not satisfy that threshold, particularly given his many prior court appearances and opportunities to rehabilitate.

Cogswell SC DCJ varied the non-parole periods for the two May 2012 offences to bring them just below the 75% mark. For practical reasons relating to the structure of the sentences, the non-parole period for each of those two sentences was reduced from 6 months to 4 months, expiring on 16 June 2013.

Orders Made

  • Appeals against sentence for the two offences committed on 21 August 2011: dismissed
  • Appeal against sentence for contravening a domestic violence order on 22 May 2012: dismissed
  • Appeals against the sentences for common assault and intimidation committed on 22 May 2012: allowed, sentences varied
  • For each of those two sentences, the non-parole period was fixed at 4 months, commencing 17 February 2013 and expiring 16 June 2013
  • The 2-year good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was confirmed as standing

Key Takeaways

  • The District Court confirmed that a non-parole period of approximately 82% of the overall sentence is inconsistent with the standard proportion contemplated by the Crimes (Sentencing Procedure) Act 1999 (NSW), which is 75%.
  • A finding of special circumstances is required to justify departing from the standard non-parole period ratio. Neither a general need for drug and alcohol counselling nor the offender's age of 35 was sufficient on the facts of this case.
  • In dismissing most of the appeals, the court affirmed that the overall sentences were appropriate and that appellate intervention was warranted only on the narrow question of the non-parole period proportion.
  • Where multiple concurrent or consecutive sentences interact, courts may adjust the non-parole period on individual sentences to achieve the correct effective proportion across the whole sentencing structure.
  • Under s 20(2) of the Crimes (Appeal and Review) Act 2001 (NSW), the District Court has power to vary, rather than merely set aside, sentences imposed in the Local Court.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 20(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9

Cases cited: None reported in the judgment.