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Court of Criminal Appeal 11 December 2015

Laupama v R

[2015] NSWCCA 311

Theft & propertyFirearms & weapons
CRIMINAL LAW APPEAL SENTENCING EFFECT OF “INSTITUTIONALISATION”

Citation: Laupama v R [2015] NSWCCA 311
Court: Court of Criminal Appeal
Date: 11 December 2015
Judge(s): Basten JA, Adams J, R A Hulme J

Background

The applicant was convicted of two serious offences: an aggravated break and enter of a dwelling house (committed in company whilst armed with a firearm) in March 2012, and an armed robbery of a bowling club in August 2012. The offences involved the use of firearms, multiple co-offenders, and confrontations with terrified occupants and staff. The applicant had a prior criminal history beginning in 2006, including convictions for aggravated robbery.

In December 2013, the District Court imposed an aggregate sentence of 11 years imprisonment with a non-parole period of 8 years and 4 months. The applicant had received a 15 per cent discount on the armed robbery count for a guilty plea entered on the first day of trial, but no discount applied to the break and enter as he had contested that charge.

The applicant sought leave to appeal his sentence on three grounds, arguing that the sentencing judge had failed to properly account for his special circumstances, particularly his history of institutionalisation, and had erred in the accumulation of the indicative sentences.

  • Whether the primary judge failed to give proper or adequate expression to his finding that special circumstances existed in relation to the aggregate sentence.
  • Whether the primary judge failed to have adequate regard to the applicant's institutionalisation when assessing those special circumstances as existing only "marginally."
  • Whether the aggregate sentence imposed reflected excessive accumulation of the indicative sentences, resulting in an incorrect calculation of the default non-parole period ratio under section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Decision

On the first two grounds, the Court of Criminal Appeal rejected the argument that the primary judge had overlooked or improperly treated the applicant's institutionalisation. Adams J noted that institutionalisation does not automatically require, in every case, a longer parole period than the default ratio would produce. The primary judge had discussed the applicant's rehabilitative needs at some length, including the need for supervision upon release. The court found no appellable error in treating special circumstances as existing only marginally.

On the third ground, however, the court identified a miscalculation in the non-parole period component of the aggregate sentence. The aggregate non-parole period of 8 years and 4 months did not correctly reflect the default ratio under section 44 when applied to the total aggregate term. This arithmetical error was sufficient to warrant a partial intervention, even though the overall length of the sentence was not disturbed.

The court reduced the non-parole period by one month, from 8 years and 4 months to 8 years and 3 months, to correct the calculation. The remainder of the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed in part: the non-parole period was varied from 8 years and 4 months to 8 years and 3 months, commencing 26 June 2013 and expiring 25 September 2021.
  • The earliest eligible release date was set at 25 September 2021.
  • Otherwise, the appeal was dismissed.

Key Takeaways

  • A finding of special circumstances based on institutionalisation does not compel a sentencing court to extend the non-parole period beyond the default ratio in every case. The weight to be given to institutionalisation remains a matter of judicial discretion, assessed in light of all relevant factors including the offender's attitude toward incarceration.
  • Under section 44 of the Crimes (Sentencing Procedure) Act 1999, the default non-parole period ratio must be correctly calculated when an aggregate sentence is imposed under section 53A. A mathematical error in applying that ratio is a ground of appeal, even where the overall sentence is otherwise appropriate.
  • In dismissing two of the three appeal grounds, the Court of Criminal Appeal confirmed that a primary judge's careful discussion of an offender's rehabilitative needs and supervision requirements upon release can satisfy the obligation to give proper expression to special circumstances, without necessarily resulting in a materially longer parole period.
  • No error was established in the primary judge's overall assessment of the objective seriousness of the offences or the aggregate term imposed. The partial intervention was limited to correcting the arithmetic of the non-parole period.
  • Where an offender's criminal record reveals a pattern of failed conditional liberty and parole breaches, community protection remains a weighty sentencing consideration that may limit the practical effect of special circumstances on the non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53A

Cases
- Jackson v R [2010] NSWCCA 162
- Jinnette v R [2012] NSWCCA 217