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Court of Criminal Appeal 27 May 2015

Allen v R

[2015] NSWCCA 113

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL DISCRETIONARY FINDING OF FACT NO “HOUSE V R” ERROR APPEAL DISMISSED.

Citation: Allen v R [2015] NSWCCA 113
Court: NSW Court of Criminal Appeal
Date: 27 May 2015
Judge(s): Hoeben CJ at CL; R A Hulme J; Beech-Jones J

Background

The appellant was a 20-year-old man who pleaded guilty to two offences committed within the same morning in January 2014: demanding money with menaces at a café in Fingal Bay, and assault with intent to rob while armed with an offensive weapon at a newsagency in Shoal Bay. In each instance, he entered the premises disguised, produced a blade, and demanded cash. Neither attempt succeeded, and he was arrested shortly afterwards when police stopped the getaway vehicle.

In June 2014, the District Court sentenced the appellant to a total of four years' imprisonment with a non-parole period of two years and eleven months. The non-parole period amounted to roughly 73% of the total sentence, rather than the standard 75% minimum set by the Crimes (Sentencing Procedure) Act 1999 (the Act provides that a non-parole period should be at least three-quarters of the head sentence unless the court finds "special circumstances" justifying a longer parole period).

The appellant applied for leave to appeal against sentence, arguing that the sentencing judge should have found "special circumstances" to justify a shorter non-parole period and longer parole period, primarily to support his prospects of rehabilitation.

  • Whether the sentencing judge erred by declining to find "special circumstances" under the Crimes (Sentencing Procedure) Act 1999, which would have allowed a non-parole period of less than 75% of the head sentence.
  • Whether the sentencing judge's exercise of discretion in setting the parole period miscarried in accordance with the principles in House v R [1936] HCA 40 (the established test for appellate intervention in discretionary decisions, requiring error of law, misapprehension of fact, or a result so unreasonable as to indicate error).

Decision

Hoeben CJ at CL (with whom Hulme J and Beech-Jones J agreed) dismissed the appeal. The court found that the sentencing judge had properly considered the appellant's subjective circumstances, including his age, drug dependency, expressed desire for rehabilitation, and the psychological report tendered on his behalf.

The sentencing judge had given weight to the appellant's three prior discharges from residential rehabilitation programs, two after only two weeks, and one by self-discharge after three months. This history directly undermined the submission that an extended parole period would meaningfully support rehabilitation. The sentencing judge's conclusion that a parole period beyond 25% of the head sentence was not warranted was open on the evidence.

The Court of Criminal Appeal emphasised that rehabilitation is not the sole or primary consideration when fixing a non-parole period. Citing R v Simpson [2001] NSWCCA 534, the court confirmed the long-standing principle that a non-parole period reflects what the sentencing judge considers the minimum period of actual custody warranted by all the circumstances, of which rehabilitation is only one factor.

No House v R error was identified. The sentencing judge's reasoning disclosed no misapprehension of fact or law, and the outcome was not so unreasonable as to require appellate intervention.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's refusal to find "special circumstances" is a discretionary decision and will not be disturbed on appeal unless error of the kind described in House v R is established.
  • Under R v Simpson, a non-parole period is determined by the minimum period of actual custody warranted by all the circumstances of the case; rehabilitation is one relevant factor but is not the sole or primary basis for fixing that period.
  • A demonstrated history of non-compliance with rehabilitation programs is a legitimate basis for a sentencing judge to discount submissions about the need for an extended parole period to support future rehabilitation.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a parole period of 13 months was not shown to be insufficient to meet genuine rehabilitation needs on these facts.
  • No special significance attaches to young age alone as a basis for finding special circumstances; the sentencing judge is required to weigh all subjective factors together against the established sentencing framework.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 99
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- House v R [1936] HCA 40; 55 CLR 499
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Power v R [1974] HCA 26; 131 CLR 623
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- Caristo v R [2011] NSWCCA 7
- Jayde Farrell v R [2012] NSWCCA 245
- Jiang v R [2010] NSWCCA 277
- MD v R [2015] NSWCCA 37
- PK v R [2012] NSWCCA 263
- R v Carter [2003] NSWCCA 243
- R v Cramp [2004] NSWCCA 264
- R v Fidow [2004] NSWCCA 172
- R v GWM [2012] NSWCCA 240
- R v Sellars [2010] NSWCCA 133
- R v Tuuta [2014] NSWCCA 40
- Trad v R [2009] NSWCCA 56; 194 A Crim R 20