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Court of Criminal Appeal 18 November 2013

R v Little

[2013] NSWCCA 288

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING CROWN APPEAL AGAINST SENTENCE WHETHER ACCUMULATION INADEQUATE WHETHER NON PAROLE PERIOD INADEQUATE

Citation: R v Little [2013] NSWCCA 288
Court: NSW Court of Criminal Appeal
Date: 18 November 2013
Judges: Blanch J (with whom RA Hulme J and Bellew J agreed)

Background

The respondent pleaded guilty in the District Court at Wagga Wagga to two serious offences arising from a home invasion in January 2009: specially aggravated break, enter and commit serious indictable offence (wounding), and aggravated robbery with wounding. Both offences carried maximum penalties of 25 years imprisonment. The victims were two women, aged 82 and 46, who were struck multiple times with a homemade mallet during the attack and sustained significant lacerations requiring substantial suturing and stapling.

The sentencing proceedings were complicated by a lengthy history involving the respondent's mental health. He had been found unfit to stand trial on multiple occasions and spent an extended period as a forensic patient under the Mental Health Review Tribunal. The 2009 offences were eventually dealt with in April 2013, alongside consideration of an earlier 2008 armed robbery at a church presbytery for which the respondent had been sentenced in 2010.

The sentencing judge imposed sentences on both counts that ran partly concurrently with the earlier 2010 sentence. The Crown appealed, arguing the resulting accumulation was inadequate and that both the head sentences and the non-parole periods were manifestly inadequate.

  • Whether the sentencing judge's accumulation of the 2009 offence sentences upon the existing 2010 sentence was manifestly inadequate.
  • Whether the extent of accumulation between the two 2009 offence sentences was insufficient.
  • Whether the non-parole periods fixed, reflecting approximately a two-thirds ratio rather than the statutory 75 per cent, were manifestly inadequate.
  • Whether, even if error were established, the Court should exercise its residual discretion to dismiss the Crown appeal in the circumstances.

Decision

Blanch J (with whom the other judges agreed) rejected each ground of the Crown's appeal. The sentencing judge had carefully considered the objective and subjective features of the case, including the respondent's age, the fact that he was imprisoned for the first time, and his significant mental and physical health difficulties. Those factors justified a departure from the standard non-parole period ratio.

On the accumulation question, the Court noted that the Crown had itself accepted at first instance that substantial concurrence was appropriate between the sentences, and had acknowledged that concurrent sentences would have been imposed had the matters been dealt with together. The Court cited the established principle, drawn from Weldon; Carberry, that concurrent sentences are not unusual where offences arise from a single criminal enterprise. The Crown's shift to a stronger accumulation argument on appeal was therefore difficult to sustain.

The Court applied the principles in Green v The Queen; Quinn v The Queen and Johnson v The Queen, reaffirming that a Crown appeal does not serve as a mechanism for general error correction and that sentencing judges should be afforded substantial flexibility within the statutory framework. The sentences fell within the broad sentencing discretion available to the judge, and no error in the exercise of that discretion was established.

Even had error been demonstrated, the Court indicated it would have exercised its residual discretion to dismiss the appeal. The grounds for doing so included the delay between sentencing and appeal, the respondent's impending release on parole, the Crown's own position at first instance, and the respondent's ongoing medical condition.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • A Crown appeal under s 5D(1) of the Criminal Appeal Act 1912 is not a vehicle for general correction of sentencing errors; it requires the sentence to be shown as falling outside the broad range of a sentencing judge's legitimate discretion.
  • Where a Crown accepts at first instance that substantial concurrence is appropriate, the Court of Criminal Appeal may treat that concession as a significant constraint on a stronger accumulation argument raised for the first time on appeal.
  • Departing from the standard 75 per cent non-parole period ratio can be justified by a combination of factors including the offender's age, first-time imprisonment, and mental and physical health, without amounting to appealable error.
  • In dismissing the appeal, the Court confirmed that a residual discretion exists to refuse Crown appeals even where error is established, and that impending parole release, delay, and the respondent's medical condition are each relevant to the exercise of that discretion.
  • Concurrent or substantially concurrent sentences for offences arising from a single criminal enterprise remain consistent with established sentencing principle, even where the individual offences are serious.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D(1)
- Crimes Act 1900 (NSW), ss 96, 112(3)
- Mental Health (Forensic Provisions) Act 1990 (NSW), Part 2

Cases:
- R v Henry (1999) 46 NSWLR 346
- Regina v Weldon; Regina v Carberry (2002) 136 A Crim R 55
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Johnson v The Queen (2004) 205 ALR 346
- R v Cramp [2004] NSWCCA (cited at [31])