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Supreme Court 6 December 2013

R v King (No. 2)

[2013] NSWSC 1811

Assault & violence
CRIMINAL LAW SENTENCE SENTENCE PAROLE PERIOD NECESSITY TO CORRECT SENTENCE

Citation: R v King (No. 2) [2013] NSWSC 1811
Court: Supreme Court of New South Wales
Date: 6 December 2013
Judge(s): Bellew J

Background

In June 2013, the offender was sentenced for three offences arising from separate incidents: assault occasioning actual bodily harm, recklessly inflicting grievous bodily harm, and murder. The total sentence imposed was 33 years and 6 months imprisonment, with an overall non-parole period of 25 years and 6 months.

Following sentencing, the Crown identified a technical error in the sentence imposed for the recklessly inflicting grievous bodily harm offence. That offence carries a standard non-parole period of four years under the relevant legislation, yet the court had imposed a fixed term of two years and six months without setting a separate non-parole period and balance of term.

The Crown applied to re-open the sentence proceedings under section 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to correct the error.

  • Whether a fixed term can validly be imposed for an offence that carries a standard non-parole period, without dividing the sentence into a non-parole period and balance of term.
  • Whether section 43 of the Crimes (Sentencing Procedure) Act 1999 conferred power to re-open the proceedings to correct the defective sentence.
  • How to restructure the sentence for the grievous bodily harm offence while preserving the overall totality of the original sentence.

Decision

Both parties agreed, and Bellew J accepted, that a fixed term cannot be imposed for an offence to which a standard non-parole period applies. Section 45(1) of the Crimes (Sentencing Procedure) Act 1999, which permits a court to decline to set a non-parole period, does not apply where a standard non-parole period is prescribed for the offence. The sentence for the grievous bodily harm count therefore required correction.

The parties also agreed that section 43 of the Act gave the court power to re-open the proceedings for this purpose, and Bellew J accepted that position.

In correcting the sentence, Bellew J noted that the original fixed term of two years and six months had been arrived at with overall totality in mind, and that the total sentence was intended to reflect the entirety of the offending. To maintain that totality, His Honour restructured the grievous bodily harm sentence by treating the original fixed term as the non-parole period and adding a balance of term of ten months. That additional ten months falls entirely within the period already covered by the murder sentence, so the overall non-parole period and total sentence remain unchanged.

Orders Made

  • The sentence proceedings were re-opened pursuant to section 43(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • In place of the fixed term previously imposed for recklessly inflicting grievous bodily harm, the offender was re-sentenced to a non-parole period of 2 years and 6 months imprisonment (commencing 1 April 2012, ending 30 September 2014), with a balance of term of 10 months (commencing 1 October 2014, ending 31 July 2015).

Key Takeaways

  • A fixed term cannot validly be imposed for an offence to which a standard non-parole period applies; section 45(1) of the Crimes (Sentencing Procedure) Act 1999, which allows a court to forgo setting a non-parole period, has no operation in those circumstances.
  • Section 43 of the Crimes (Sentencing Procedure) Act 1999 provides a mechanism to re-open sentence proceedings to correct a structurally defective sentence of this kind.
  • Where the original fixed term was shaped by totality considerations, the Supreme Court treated that fixed term as the non-parole period and added a balance of term that was absorbed by a concurrent, longer sentence, leaving the overall sentence structure undisturbed.
  • The Court of Criminal Appeal had previously noted differing views on how to treat a fixed term when correcting such an error; Bellew J distinguished those cases on the basis that he was the original sentencing judge and could speak directly to his own intention.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 43, 45(1)
- Crimes Act 1900 (NSW), s 35(2)

Cases
- Collier v R [2012] NSWCCA 213
- Mammone v R [2013] NSWCCA 95
- SGJ v R; KU v R [2008] NSWCCA 258