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Court of Criminal Appeal 8 February 2013

Burns v R

[2013] NSWCCA 17

HomicideDrugs
CRIMINAL LAW

Citation: Burns v R [2013] NSWCCA 17
Court: NSW Court of Criminal Appeal
Date: 8 February 2013
Judge(s): Latham J, Button J, Grove AJ

Background

The applicant was sentenced in the District Court in October 2009 on five counts: one count of manslaughter and four counts of supplying methadone. The sentencing judge structured the sentences so that the manslaughter count and one related methadone supply count (count two) ran concurrently with each other, but cumulative to a degree on the three remaining methadone counts. Because the manslaughter sentence already carried a non-parole period that would subsume any non-parole period for count two, the sentencing judge imposed only a fixed term for count two.

In June 2012, the High Court quashed the applicant's manslaughter conviction. This left her serving the fixed term on count two with no non-parole period attached to it, meaning she had no avenue for early release on parole, despite that outcome being an unintended consequence of the original sentencing structure rather than a deliberate sentencing choice.

The applicant's legal representatives sought a variation under s 43 of the Crimes (Sentencing Procedure) Act 1999, but the sentencing judge refused. The applicant was granted bail in July 2012 and remained on bail when the matter came before the Court of Criminal Appeal.

  • Whether the Court of Criminal Appeal had power under s 7(1) of the Criminal Appeal Act 1912 to re-sentence on a remaining count after one count had been quashed on appeal.
  • How the court should exercise that power to remedy the injustice created by the collapse of the original sentence structure following the quashing of the manslaughter conviction.
  • What form a re-sentence for count two should take, given the applicant had already been released to bail and was not to be returned to custody.

Decision

The Court confirmed that s 7(1) of the Criminal Appeal Act 1912 gives it a discretion to re-sentence on remaining counts where one or more convictions on the same indictment have been quashed. All three judges agreed that intervention was necessary. The parties also agreed on this point; the only question was the appropriate mechanism.

Button J identified the injustice clearly: had there been no manslaughter sentence at first instance, it was safe to infer that a non-parole period would have been attached to count two. On a standard 75 per cent ratio, the applicant would have been eligible for parole consideration in January 2013. Without re-sentencing, she would serve the full fixed term without any parole entitlement.

The Court declined to alter the commencement date of the count two sentence or to adopt a more complex restructuring. Instead, it imposed a new head sentence of three years with a non-parole period of 2 years and 13 days, backdated so that the non-parole period expired on 27 July 2012, the date the applicant was released to bail. This converted her status from bail to parole, with the head sentence running until 13 July 2013.

The ratio between the new non-parole period and the new head sentence was approximately 68 per cent. Button J found that a finding of special circumstances to justify this lower-than-standard ratio was entirely appropriate in the circumstances, and that the overall ratio across all remaining sentences (approximately 76 per cent) remained within an acceptable range.

Orders Made

  • Leave to appeal granted in respect of the sentence for count two (supplying methadone).
  • Appeal allowed.
  • Sentence for count two quashed.
  • In substitution: the applicant sentenced on count two to a non-parole period of 2 years and 13 days, commencing 14 July 2010 and expiring 27 July 2012, with an additional term of 11 months and 17 days commencing 28 July 2012 and expiring 13 July 2013.

Key Takeaways

  • Section 7(1) of the Criminal Appeal Act 1912 empowers the Court of Criminal Appeal to re-sentence an offender on surviving counts when one or more convictions on the same indictment are subsequently quashed, including where the quashing disrupts the structural logic of the original sentence.
  • Where a sentencing judge deliberately omitted a non-parole period on one count because it would have been absorbed by a non-parole period on a concurrent count, and that concurrent conviction is later quashed, a serious injustice can arise that requires correction on appeal.
  • Under s 7(1), the Court of Criminal Appeal has flexibility in how it re-sentences: it is not required to alter commencement dates or adopt complex restructuring if a simpler substituted sentence can achieve justice.
  • A finding of special circumstances to produce a lower-than-standard non-parole period ratio is available where the specific facts of the re-sentencing exercise justify the departure.
  • The court's obligation under s 50 of the Crimes (Sentencing Procedure) Act 1999 to order release at the end of a non-parole period did not require a formal release order in this case, as the non-parole period had already expired and the applicant had in fact been released.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 7(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 43, 50

Cases:
- Lavender v R [2006] NSWCCA 24
- Sheehan [No 2] v R [2006] NSWCCA 332