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Court of Criminal Appeal 19 July 2013

Gray v R

[2013] NSWCCA 169

Theft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL 194 CLR 610

Citation: Gray v R [2013] NSWCCA 169
Court: Court of Criminal Appeal, NSW
Date: 19 July 2013
Judges: Bathurst CJ, Fullerton J, Campbell J

Background

The applicant was sentenced in the District Court in December 2010, following guilty pleas in the Local Court, to eight offences including six counts of armed robbery and two counts of taking and driving a motor vehicle without consent. Two further offences were taken into account on a Form 1. Each offence attracted a 25 per cent discount for the guilty pleas.

The offending occurred in September 2009 while the applicant was on parole from an earlier District Court sentence for armed robbery. His parole was revoked following his arrest. The sentencing judge found special circumstances on each of the armed robbery counts, which varied the statutory ratio between the non-parole period and the additional term to approximately 66 per cent (from the standard 75 per cent).

The total effective sentence was 8 years, comprising a non-parole period of 6 years and an additional term of 2 years. That structure, as a matter of arithmetic across the combined sentence, restored the standard statutory ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The applicant sought leave to appeal on the basis that the sentencing judge failed to give practical effect to the special circumstances finding when considering the total effective sentence.

  • Whether the sentencing judge erred by failing to give practical effect to the finding of special circumstances in the structure of the total effective sentence, so that the overall non-parole ratio remained at the statutory default despite the individual findings.
  • Whether the sentencing judge erred in the manner identified in Pearce v The Queen [1998] HCA 57, which requires that a judge not impose a sentence on one count that is affected by the fact of imprisonment on another count.

Decision

The Court of Criminal Appeal dismissed the appeal, finding no error in the sentencing judge's approach. Fullerton J, with whom Bathurst CJ agreed, held that a finding of special circumstances on individual counts does not automatically require that the ratio between non-parole and additional term be disturbed across the total effective sentence. The sentencing exercise requires the court to consider the totality of the sentence and arrive at an outcome appropriate to the overall criminality.

Campbell J, writing separately, traced the history of the special circumstances provisions and the relevant case law. His Honour confirmed that the sentencing legislation does not mandate a sequential two-step process requiring the judge to fix the non-parole period first and treat it as immutable. The total sentence and its components can be assessed concurrently, drawing on general sentencing principles throughout.

The Court also rejected the Pearce ground. The applicant contended that the overall sentence structure showed the judge had, in effect, set the non-parole period by reference to the separate parole period being served, thereby creating an artificially inflated ratio. The Court found no error of that kind on the facts.

Campbell J added that the sentencing judge's recommendation that the applicant receive drug treatment in custody did not offend the principles discussed in Muldrock v The Queen [2011] HCA 39.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A finding of special circumstances on individual counts does not, as a matter of law, require the overall non-parole ratio across the total effective sentence to depart from the statutory default under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the sentencing process does not require a rigid sequential approach: the total sentence and its components can be assessed simultaneously, guided throughout by general sentencing principles.
  • Under Pearce v The Queen, a sentencing judge must not inflate a sentence on one count by reason of the fact of imprisonment on another. No breach of that principle was established on these facts.
  • The Court confirmed that a sentencing judge's in-custody drug treatment recommendation does not, of itself, contravene the standard for instinctive synthesis affirmed in Muldrock v The Queen.
  • No error warranting appellate intervention was identified despite the arithmetic effect of the sentence structure restoring the standard statutory ratio at the aggregate level.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 117, 154A(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 45
- Criminal Appeal Act 1912 (NSW)
- Sentencing Act 1989 (NSW) (Repealed)

Cases:
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
- Abbas v R [2013] NSWCCA 115
- R v Moffitt (1990) 20 NSWLR 114
- R v Hampton (1998) 44 NSWLR 729
- Bugmy v The Queen [1990] HCA 18; 169 CLR 525
- Power v The Queen (1974) 131 CLR 623
- R v Henry (1999) 46 NSWLR 346
- Kalache v R [2011] NSWCCA 210
- R v Cicekdag [2004] NSWCCA 357; 150 A Crim R 299