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10
Court of Criminal Appeal 14 March 2014

R v Farrell

[2014] NSWCCA 30

Also reported as 239 A Crim R 212
Firearms & weapons
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE SENTENCING DIRECTION MISCARRIED RESIDUAL DISCRETION NO PRACTICAL BENEFIT IN ALLOWING APPEAL APPEAL DISMISSED

Citation: R v Farrell [2014] NSWCCA 30
Court: Court of Criminal Appeal, New South Wales
Date: 14 March 2014
Judge(s): Hoeben CJ at CL, Adams J, R A Hulme J (judgment delivered by R A Hulme J)

Background

The respondent pleaded guilty in the District Court at Campbelltown to possessing a prohibited weapon, specifically a loaded 9mm Uzi machine pistol modified for fully automatic fire and bearing a defaced serial number. CCTV footage and forensic evidence connected him directly to the weapon. Four additional firearms offences were listed to be taken into account on sentence. The primary offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of three years.

On 21 November 2013, rather than imposing a sentence, the sentencing judge adjourned the proceedings under section 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and granted the respondent bail, directing him to return in April 2014. The stated reasons related principally to the respondent's need for surgery on an injured hand and his progress in rehabilitation while in custody.

The Director of Public Prosecutions appealed against that adjournment, arguing that it amounted to a manifestly inadequate exercise of sentencing discretion. The sole ground of appeal was that failing to impose any sentence at all was a manifestly inadequate outcome given the gravity of the offending.

  • Whether an adjournment order under section 11 of the Crimes (Sentencing Procedure) Act 1999 constitutes a "sentence" amenable to a Crown appeal under section 5D of the Criminal Appeal Act 1912 (NSW)
  • Whether the sentencing judge erred in adjourning proceedings on the basis that the respondent required surgery
  • Whether there was sufficient benefit in deferring sentencing to allow the respondent to undertake further supervised rehabilitation outside custody
  • Whether, even if error was established, the Court of Criminal Appeal should exercise its residual discretion to refrain from intervening

Decision

The Court confirmed that an order made under section 11 of the Crimes (Sentencing Procedure) Act falls within the statutory definition of "sentence" in the Criminal Appeal Act, as established in R v Trindall. Accordingly, it was amenable to a Crown appeal under section 5D. The proposition that failing to impose a sentence where one is demonstrably called for can constitute a manifestly inadequate exercise of sentencing discretion was also accepted.

The Court found that the sentencing judge erred in concluding that the respondent's need for hand surgery supported the adjournment. The evidence showed that no-one on the respondent's behalf had taken steps to arrange the surgery through Justice Health while he was in custody. There was no basis for the primary judge to treat the outstanding surgery as a reason to adjourn, and the respondent had not established otherwise, either before the District Court or the Court of Criminal Appeal.

The Court also rejected the submission that deferring sentencing would allow the respondent to undertake supervised rehabilitation unavailable within the correctional system. Ample evidence about rehabilitation prospects was already before the court, and the sentencing judge had not suggested that monitoring further rehabilitation was necessary to determine the appropriate sentence. These combined errors meant the sentencing discretion had clearly miscarried.

Despite finding error, the Court declined to intervene, exercising its residual discretion. The adjournment order had been made in November 2013, the appeal hearing was delayed by summer listing arrangements, and by the time judgment was delivered in March 2014 the matter was due back before the primary judge in April 2014. The Court concluded there was nothing practical to be achieved by making the orders sought, as final sentencing was unlikely to occur any earlier than already scheduled.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • An adjournment order made under section 11 of the Crimes (Sentencing Procedure) Act 1999 qualifies as a "sentence" for the purposes of section 5D of the Criminal Appeal Act 1912, and is therefore amenable to a Crown appeal on the ground of manifest inadequacy.
  • Failing to impose any sentence at all, in circumstances where one is demonstrably called for by the gravity of the offending, can constitute a manifestly inadequate exercise of sentencing discretion.
  • A section 11 adjournment will not be justified by an offender's need for medical treatment where no steps have been taken, by or on behalf of the offender, to pursue that treatment through the available channels in custody. The onus of establishing the surgery could not be arranged in custody rested with the respondent.
  • Where a sentencing court already has ample evidence to assess rehabilitation prospects, there is no proper basis to defer sentencing simply to allow further rehabilitation outside custody to be observed or monitored.
  • In dismissing the appeal, the Court of Criminal Appeal exercised its residual discretion against intervention, even after finding clear sentencing error, because no practical benefit could be achieved given the proximity of the already-scheduled sentencing date.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly s 11 and s 33
- Criminal Appeal Act 1912 (NSW), particularly s 5D and s 2
- Firearms Act 1996 (NSW), particularly ss 7(1), 36(1), 39(1)(a), 65(3) and 66(b)

Cases
- R v Trindall [2002] NSWCCA 364; 133 A Crim R 119
- R v Palu [2002] NSWCCA 381; 134 A Crim R 174
- House v The King [1936] HCA 40; 55 CLR 499
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Thalari v R [2009] NSWCCA 170; 75 NSWLR 307
- R v Brown [2009] NSWCCA 6; 193 A Crim R 574
- R v Rayment [2010] NSWCCA 85; 200 A Crim R 48