Citation: R v Chandler [2014] NSWDC 389
Court: District Court of New South Wales
Date: 5 December 2014
Judge: Judge S Norrish QC
Background
The prisoner, Benjamin Chandler, was found guilty by a jury of armed robbery with wounding, committed on 5 April 2009 at Randwick. The victim had withdrawn cash from an ATM and was returning to his parked car when the prisoner approached him, armed with a knife, and robbed him. The prisoner was stabbed during the attack. The offence carries a maximum penalty of 25 years' imprisonment and a standard non-parole period of seven years.
The charge arose as a "cold hit" many years after the offence, when DNA technology matched the prisoner's profile to the knife used in the robbery. By that time, the prisoner was already in custody serving sentences for a series of related armed robbery and assault offences committed between 22 March 2009 and 17 April 2009. The current offence fell roughly in the middle of that period of offending.
The earlier sentences, imposed by a District Court colleague and confirmed by the Court of Criminal Appeal in 2012, amounted to an effective term of seven years and nine months with an effective non-parole period of approximately five years and three months, running from April 2009. The sentencing task before Judge Norrish was therefore to impose a sentence for the present offence that properly reflected the totality of all known criminality without unjustly compounding the prisoner's overall punishment.
Legal Issues
- What sentence was appropriate for a serious armed robbery with wounding, taking into account the maximum penalty and the standard non-parole period?
- How should the principle of totality apply where the current offence was sandwiched chronologically between offences already sentenced?
- Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 justifying a departure from the standard ratio between head sentence and non-parole period.
- How to account, in a fresh sentence, for the entire period the prisoner had already spent in custody since April 2009.
Decision
Judge Norrish applied the principle of totality, which requires a sentencing court to ensure that the cumulative effect of all sentences reflects the overall criminality of the offender, without producing a crushing or disproportionate outcome. Because the current offence was committed in the middle of the series already dealt with, the sentence had to be fashioned with close attention to what the prisoner had already served and was still serving.
The court accepted that the prisoner had been in continuous custody since 22 April 2009, initially on Local Court sentences for summary matters and then on the District Court sentences for the related armed robbery offences. All of this time was factored into the commencement date chosen for the new sentence, rather than treating the prisoner as serving the existing sentences separately and then adding a new term on top.
His Honour found that special circumstances existed. The accumulated nature of the sentences, combined with other relevant matters including the prisoner's mental disability, justified extending the proportion of the sentence spent on parole beyond the standard ratio. The standard non-parole period of seven years was treated as one factor in the sentencing calculus, not the sole determinant, consistent with the High Court's approach in Muldrock v The Queen. The overall sentence was crafted through the "instinctive synthesis" process endorsed by the High Court in Markarian v The Queen, weighing all relevant considerations together.
Orders Made
- The prisoner was convicted of armed robbery whilst armed with an offensive weapon and wounding, contrary to the Crimes Act 1900.
- Sentenced to a total term of imprisonment of seven years, commencing 22 July 2013 and expiring 21 July 2020.
- Non-parole period fixed at three years and three months, commencing 22 July 2013 and expiring 21 October 2016.
- Balance of sentence: three years and nine months.
- Eligible for release to parole on 21 October 2016.
Key Takeaways
- The totality principle required the District Court to fashion a sentence for the current offence that, when viewed alongside existing sentences, represented a just and proportionate reflection of all of the prisoner's known criminality across the relevant period.
- Where a prisoner has been in continuous custody since well before a new sentence is formally imposed, a sentencing court may set an earlier commencement date that credits the time already served, rather than running the new sentence from the date of the fresh sentencing hearing.
- Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 were established on the basis of accumulated sentences and the prisoner's mental disability, permitting a non-parole period proportionately shorter than the standard.
- Under Muldrock v The Queen, the standard non-parole period functions as a guidepost among many relevant sentencing factors, not as a fixed or presumptive starting point.
- A historical offence identified through a DNA cold hit does not escape the ordinary sentencing framework, but its chronological relationship to already-sentenced offending is a material consideration in determining both the head sentence and the non-parole period.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 44, Part 4 Div 1A and Div 1B
- Crimes Act 1900 (NSW)
Cases
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen [2011] HCA 39
- Pearce v The Queen (1998) 194 CLR 16
- Veen (No 2) v The Queen [1988] HCA 14
- R v Chandler; Chandler v R [2012] NSWCCA 135
- Cahyadi v The Queen [2007] NSWCCA 1
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- R v Henry (1999) 46 NSWLR 346
- R v Hammoud [2000] 118 A Crim R 66
- R v Hemsley [2004] NSWCCA 228
- R v Israil [2002] NSWCCA 255
- R v MMK [2006] 164 Crim R 481
- R v Z [2006] NSWCCA 342
- The Queen v Martin [2014] NSWCCA 283