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Court of Criminal Appeal 28 July 2015

Sparkes v R

[2015] NSWCCA 203

Theft & property
CRIMINAL LAW APPEAL AGAINST AGGREGATE SENTENCE WHETHER APPLIED TO INDICATIVE SENTENCES

Citation: Sparkes v R [2015] NSWCCA 203
Court: NSW Court of Criminal Appeal
Date: 28 July 2015
Judge(s): Hoeben CJ at CL, Price J, Fagan J

Background

The applicant pleaded guilty in the Parramatta Local Court to one count of aggravated break, enter and commit a serious indictable offence (carrying a maximum of 20 years imprisonment) and one count of taking and driving a conveyance (maximum 5 years). He also asked the sentencing judge to take into account three further charges on two Form 1s, covering property damage, larceny, and a second take-and-drive offence.

The District Court sentenced the applicant to an aggregate term of 6 years and 4 months imprisonment, with a non-parole period of 4 years and 9 months commencing from the date of arrest. The judge set indicative sentences of 7 years for count one and 4 years for count two, then applied a 25 per cent utilitarian discount for the early guilty pleas. The sentences commenced from the date of arrest, 23 September 2013, even though the applicant was already serving other sentences of imprisonment at that time.

The applicant sought leave to appeal to the Court of Criminal Appeal on the sole ground that the aggregate sentence was manifestly excessive.

  • Whether the aggregate sentence of 6 years and 4 months was manifestly excessive, having regard to the indicative sentences, the objective seriousness of the offending, and the applicant's subjective circumstances.
  • Whether the indicative sentence for count two (take and drive) was itself excessive, given that working backwards from the 25 per cent discount produced a starting point exceeding the 5-year maximum penalty for that offence.
  • Whether the sentencing judge erred in declining to find special circumstances warranting a longer parole period, particularly given the applicant's significant drug addiction issues.
  • What weight, if any, the Judicial Commission sentencing statistics should carry in assessing manifest excess.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Price J, with Hoeben CJ at CL and Fagan J agreeing, found that no manifest excess had been demonstrated.

The Court acknowledged the applicant's argument about the indicative sentence for count two. Working backwards from the 25 per cent discount, the starting point implied by the judge's indicative sentence of 4 years for count two would have exceeded the 5-year statutory maximum. However, the Court noted that indicative sentences in aggregate sentencing are not themselves independently appealable. Their significance lies in assessing whether the aggregate sentence is appropriate overall, not in whether each indicative figure is mathematically precise in isolation.

On the question of the Judicial Commission statistics, the Court observed that they carry limited weight in this case. The database did not allow users to filter by the aggravating factor of being on conditional liberty (section 11 bail) at the time of offending. The overlapping nature of multiple concurrent sentences further reduced the practical utility of the comparative data.

The Court also found it was open to the sentencing judge to decline to find special circumstances. The applicant's lack of remorse, poor prospects of rehabilitation, and breach of bail conditions did not support extending the parole period on the basis of a need for longer community supervision to address drug addiction. Significantly, the commencement of the aggregate sentence from the date of arrest was described as generous, producing an effective additional non-parole period of just over 2 years and 4 months given the sentences already being served.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Indicative sentences set under an aggregate sentencing structure are not independently appealable; their relevance is as a guide to whether the aggregate sentence as a whole is excessive.
  • Where the arithmetic implied by working backwards from a guilty plea discount produces a starting point above the statutory maximum for an individual offence, this may signal error in the indicative sentence but does not automatically render the aggregate sentence manifestly excessive.
  • Judicial Commission sentencing statistics have limited utility when the database cannot account for specific aggravating features, such as offending while on conditional liberty, or when multiple overlapping sentences complicate direct comparison.
  • A generous commencement date for an aggregate sentence (here, the date of arrest rather than a later date) is a relevant factor in assessing whether the overall sentence is excessive, and can offset other apparent sources of leniency such as the absence of a special circumstances finding.
  • Declining to find special circumstances is an available exercise of discretion where an applicant's lack of remorse, poor rehabilitation prospects, and bail breach weigh against a finding that an extended parole period is warranted, even where significant drug addiction is present.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 117, 154A(1)(a), 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, 32

Cases:
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- JM v R [2014] NSWCCA 297
- Makarian v R [2005] HCA 25; (2006) 228 CLR 357
- R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566