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Court of Criminal Appeal 27 August 2014

Hart v R

[2014] NSWCCA 172

Assault & violenceTheft & propertyTraffic & drivingPublic order & justice offences
CRIMINAL LAW APPEAL ERROR ESTABLISHED CRIMINAL LAW FINDING OF SPECIAL CIRCUMSTANCES MADE APPLICANT RE SENTENCED

Citation: Hart v R [2014] NSWCCA 172
Court: Court of Criminal Appeal, NSW
Date: 27 August 2014
Judges: Gleeson JA, Adamson J, Bellew J (Bellew J writing)

Background

The appellant had a significant and lengthy criminal history, including a murder conviction in 1993 for which he served a minimum term of 14 years. After his eventual release on parole in 2009, he was returned to custody following a driving offence that constituted a parole breach. He was released again in October 2010 and remained at liberty for just over a year before his arrest in November 2011.

The appellant was sentenced in the District Court in October 2013 for a series of serious offences committed in November 2011, including robbery in company, armed robbery, larceny of motor vehicles, destroying property by fire, and using an offensive weapon to prevent lawful apprehension. The offences involved two planned robberies with a co-offender, one netting nearly $37,000, as well as a police pursuit in which the appellant drove his vehicle directly at an officer.

The overall sentence imposed was a non-parole period of 8 years and 6 months with an additional term of 2 years and 6 months. On the assumed trajectory of those sentences, the appellant would have spent 26 of the preceding 28 years in custody by the time he was eligible for parole at age 52. He appealed on the basis that the sentencing judge had failed to take into account evidence relevant to a finding of special circumstances.

  • Whether the sentencing judge erred by failing to address evidence that the appellant had become institutionalised and had experienced significant difficulties reintegrating into the community following his previous release from custody
  • Whether that evidence was capable of supporting a finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999, justifying a departure from the standard ratio between the non-parole period and the head sentence
  • Whether, if error was established, the appellant should be re-sentenced

Decision

The Court found that the sentencing judge had committed a material error. A forensic psychiatrist's report, tendered without objection, documented that the appellant had become institutionalised after his long period in custody and had experienced serious psychological difficulties upon release, including anxiety, paranoia, and an inability to cope with ordinary social demands. That evidence was the subject of submissions at the sentencing hearing, yet the sentencing judge made no reference to it when imposing sentence.

Bellew J held that this omission constituted an error in the exercise of the sentencing discretion. The evidence was directly relevant to the question of special circumstances, because a longer period of supervised parole would assist the appellant in managing the transition back into the community, given his documented difficulties with reintegration.

The Court declined to alter the total overall sentence, given the objective seriousness of the offending. However, it found that special circumstances were established and that a modest adjustment to the proportional relationship between the non-parole period and the head sentence was warranted. The Court noted that, under the Crimes (Administration of Sentences) Regulation 2008, a practical limit of three years of supervised parole ordinarily applied, though there was a possibility of extended supervision if the appellant were managed as a serious offender. Proceeding on the basis of what was certain, the Court restructured the sentence to allow a three-year parole period, providing six months of additional supervised parole.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The sentence imposed for the armed robbery on 10 November 2011 was quashed
  • In substitution, the appellant was sentenced to a non-parole period of 7 years imprisonment commencing 16 November 2012 and expiring 15 November 2019, with a balance of term of 3 years commencing 16 November 2019 and expiring 15 November 2022
  • All other sentences confirmed
  • The appellant became eligible for parole on 16 November 2019, with the sentence expiring on 15 November 2022

Key Takeaways

  • A sentencing judge's failure to refer to evidence that was before the court and the subject of submissions can constitute a material error, even where that evidence does not go to the objective gravity of the offending.
  • Evidence of institutionalisation and documented reintegration difficulties following prolonged custody is capable of supporting a finding of special circumstances, justifying a longer parole period relative to the overall head sentence.
  • Where special circumstances are established, the court's adjustment need not alter the total sentence imposed; restructuring the ratio between the non-parole period and the balance of term is sufficient.
  • Under the Crimes (Administration of Sentences) Regulation 2008, a practical limit of three years of supervised parole ordinarily applies, though the serious offender provisions in the Crimes (Administration of Sentences) Act 1999 may allow for an extended period in appropriate cases.
  • In dismissing any alteration to the total sentence, the Court of Criminal Appeal confirmed that the objective seriousness of the offending remained a significant constraint on the extent of any re-sentencing adjustment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1)(a), 97(1), 97(2), 117, 195(1)(b)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 3
- Crimes (Administration of Sentences) Regulation 2008 (NSW), cl 228
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- Jinnette v R [2012] NSWCCA 217
- R v Hart NSWCCA (unreported) 21 June 1996
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 546
- R v Simpson [2001] NSWSC 534; (2001) 53 NSWLR 704
- R v Tuuta [2014] NSWCCA 40
- R v Wasson [2014] NSWCCA 95