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Court of Criminal Appeal 27 June 2013

Taylor v R

[2013] NSWCCA 157

Fraud & dishonestyFirearms & weaponsDomestic & family violence
CRIMINAL APPEAL SENTENCE APPEAL NO JURISDICTIONAL ERROR CRIMINAL APPEAL SENTENCE APPEAL MANIFEST EXCESS FIREARMS OFFENCE

Citation: Taylor v R [2013] NSWCCA 157
Court: NSW Court of Criminal Appeal
Date: 27 June 2013
Judges: Hoeben CJ at CL, McCallum J, R A Hulme J

Background

The appellant was sentenced in the District Court at Newcastle in June 2011 for a large number of offences spanning both State and Commonwealth law. These included possessing endangered species under Commonwealth legislation, dishonesty offences, a domestic violence offence of recklessly inflicting grievous bodily harm, and a particularly serious charge of possessing more than three unregistered firearms, at least one of which was a prohibited firearm or pistol. Police found 30 firearms at his home, many in a hidden room, with loaded weapons under his bed and in the lounge room.

The original sentencing judge made two errors. First, he imposed an aggregate sentence for all State offences under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), not realising that provision did not apply because the appellant's pleas had been entered before the section commenced. Second, he miscalculated the commencement date for the aggregate sentence, specifying 21 May 2010 instead of the correct 11 May 2010. Both errors were subsequently corrected by the Chief Judge of the District Court under s 43 of the same Act.

The appellant sought leave to appeal, arguing that the original sentencing exercise was infected by jurisdictional error and therefore incapable of correction under s 43. He also contended that the sentence for the firearms offence was manifestly excessive, and that pre-sentence custody had not been properly accounted for.

  • Whether the original sentencing judge's use of aggregate sentencing under s 53A, when that provision did not apply, constituted a "jurisdictional error" that deprived the District Court of power to correct the sentences under s 43
  • Whether the correcting judge (Blanch J) had acted within power under s 43 in re-imposing individual sentences
  • Whether the sentence imposed for the firearms offence (possession of more than three unregistered prohibited firearms) was manifestly excessive
  • Whether a computation error regarding pre-sentence custody required correction

Decision

Jurisdictional error argument: The Court of Criminal Appeal rejected the appellant's contention that imposing an aggregate sentence under a provision that did not apply constituted jurisdictional error. The Court noted that the appellant offered no principled reason to treat the aggregate sentencing error as jurisdictional while accepting the commencement date error was not. Both errors involved the sentencing judge doing something not authorised by the applicable legislation, but that does not automatically elevate an error into one going to jurisdiction. The correction by Blanch J under s 43 was valid.

The s 43 correction: Blanch J had re-imposed individual sentences guided by the terms Coolahan DCJ indicated he would have applied absent an aggregate sentence. The total effective sentence after correction was 12 years with a minimum custodial component of 8 years and 6 months, ten days less than the original. The Court found no error in the approach taken.

Manifest excess for the firearms offence: The Court declined to find the sentence for the firearms offence manifestly excessive. The appellant possessed 30 firearms, including 13 prohibited firearms and 3 pistols, many operable, with loaded weapons accessible in the bedroom and lounge room. R A Hulme J observed that the sheer number and nature of the firearms reflected a substantial degree of criminality. The maximum penalty for the offence is 20 years with a standard non-parole period of 10 years, and the sentence of 7 years 6 months with a 4-year non-parole period was not excessive given those facts.

Pre-sentence custody: The Court identified a computation error in the commencement dates for all sentences. The correct commencement date for the earliest sentence should have been 20 October 2009, not 11 November 2009. Because neither the original sentencing judge nor Blanch J had applied the correct date, the Court of Criminal Appeal granted leave and allowed the appeal to the limited extent necessary to adjust the commencement dates across all sentences. R A Hulme J described the application as "entirely unmeritorious" aside from this technical error.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences confirmed but commencement dates and non-parole period expiry dates adjusted as follows:
  • Possession of CITES specimens (two counts): sentences to date from 20 October 2009; recognizance release order to date from 20 April 2010
  • Receiving and disposing of stolen property: sentences to date from 20 April 2010; non-parole period for receiving stolen property to expire 19 April 2012 (no non-parole period fixed for disposing of stolen property)
  • Recklessly inflicting grievous bodily harm: sentence to date from 20 April 2012; non-parole period to expire 19 April 2014
  • Unauthorised possession of more than three unregistered firearms (any one a prohibited firearm or pistol): sentence to date from 20 April 2014; non-parole period to expire 19 April 2018
  • Possession of prohibited weapon and dealing with proceeds of crime: sentences to date from 20 April 2014; non-parole periods to expire 19 April 2017
  • Parole eligibility specified as 19 April 2018, upon expiry of the non-parole period for the firearms offence

Key Takeaways

  • Imposing an aggregate sentence under a statutory provision that did not apply to the offender does not necessarily constitute a "jurisdictional error." The Court of Criminal Appeal found that both errors in the original sentencing exercise were of the same character: the sentencing judge acted beyond his statutory authority, but that is not the same as acting without jurisdiction.
  • Under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the District Court has power to correct sentencing errors of this kind, and that power was validly exercised by the Chief Judge in re-imposing individual sentences in place of an invalid aggregate sentence.
  • Where an offender possesses 30 firearms including numerous prohibited weapons and pistols, many of them operable and some loaded within immediate reach, a sentence well below the statutory maximum will not readily be characterised as manifestly excessive.
  • Pre-sentence custody must be accurately reflected in the commencement dates of sentences. A miscalculation of even a short period remains a correctable error and, if not corrected below, may require the Court of Criminal Appeal to intervene.
  • In dismissing the substantive grounds of appeal, the Court granted leave solely to remedy the technical commencement date error, confirming that leave to appeal will still be granted where a discrete computation error has not been corrected.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(2), 188(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 43, 47(4), 53A, Pt 21 Sch 2
- Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 303GN(2)
- Firearms Act 1996 (NSW), s 51D(2)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases:
- Achurch v R (No 2) [2013] NSWCCA 117
- Caristo v R [2011] NSWCCA 7
- Ho v Director of Public Prosecutions (1995) 82 A Crim R 80