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Court of Criminal Appeal 2 June 2016

Martin v R

[2016] NSWCCA 104

Assault & violenceDrugsTheft & property
CRIMINAL LAW SENTENCING APPEAL EARLY PLEAS OF GUILTY LIMITED INTERVENTION WARRANTED

Citation: Martin v R [2016] NSWCCA 104
Court: NSW Court of Criminal Appeal
Date: 2 June 2016
Judges: Bathurst CJ, Hall J, R A Hulme J

Background

The applicant pleaded guilty in the District Court to two offences arising from events on 4 February 2014. The first was aggravated break, enter and commit larceny (the aggravating circumstance being that two people were asleep in the home at the time). The second was assault with intent to rob armed with an offensive weapon, namely a syringe pointed close to a service station worker's neck. A further charge of resisting a police officer was taken into account on a Form 1.

Acting Judge Garling sentenced the applicant on 23 March 2015. The total effective sentence was 5 years imprisonment, with a non-parole period of 3 years and 3 months, making the non-parole period approximately 65% of the total term. The sentencing judge found special circumstances (based on the applicant's need for drug rehabilitation) but did not adequately reduce the non-parole period to reflect that finding.

The applicant sought leave to appeal on three grounds: error in applying the armed robbery guideline judgment, failure to give full effect to the special circumstances finding and the totality principle, and manifest excess.

  • Whether the sentencing judge correctly applied the guideline judgment in R v Henry when sentencing for the armed robbery offence, particularly regarding the discount for an early guilty plea.
  • Whether the sentencing judge erred by finding special circumstances but failing to adjust the non-parole period ratio accordingly.
  • Whether the total effective sentence was manifestly excessive.
  • Whether, when an identified error affects only a discrete component of a sentence, the Court should re-exercise the sentencing discretion in relation to the whole sentence or only that component.

Decision

On the first ground, the Court found that the sentencing judge had misstated the applicable discount for the guilty plea when working through the Henry criteria for armed robbery. However, the Court concluded that the sentence actually imposed for the armed robbery was nonetheless appropriate and did not reflect the error in a way that affected the outcome. Leave to appeal on this ground was effectively confined to its interaction with the broader sentencing exercise.

On the second ground, the Court accepted that the sentencing judge had properly found special circumstances based on the applicant's lengthy drug dependency and need for rehabilitation. The error lay in the failure to translate that finding into an appropriate reduction of the non-parole period. The statutory ratio under the Crimes (Sentencing Procedure) Act 1999 requires the non-parole period to be at least three-quarters of the total sentence, but a finding of special circumstances permits departure downward from that ratio. The judge found special circumstances yet did not sufficiently adjust the ratio across the total effective sentence.

The Court found limited intervention was warranted. The head sentences themselves were not in error and were not manifestly excessive. The resentencing adjusted only the non-parole period for Count 2 to give proper effect to the special circumstances finding, reducing the total non-parole period and bringing the ratio more closely into line with the judge's expressed intention.

R A Hulme J added a separate analysis (with which Bathurst CJ declined to express a concluded view) addressing the question of when an identified sentencing error requires a full fresh exercise of the discretion across the entire sentence, as against a more targeted correction confined to the affected component. His Honour suggested that where an error vitiates the whole sentencing exercise, a full resentencing is required, but where the error affects only a discrete and severable component, the discretion need only be re-exercised in relation to that part.

Orders Made

  • Leave to appeal granted.
  • Sentences imposed by the District Court quashed.
  • Applicant resentenced as follows:
  • Count 1: Non-parole period of 1 year and 10 months (30 December 2014 to 29 October 2016), balance of term of 1 year and 2 months (to 29 December 2017).
  • Count 2: Non-parole period of 2 years and 3 months (30 June 2015 to 29 September 2017), balance of term of 2 years and 3 months (to 29 December 2019).
  • Applicant eligible for release on parole from 29 September 2017.

Key Takeaways

  • A sentencing judge who finds special circumstances must give actual effect to that finding by adjusting the non-parole period ratio; identifying special circumstances without adjusting the ratio is an error warranting appellate intervention.
  • The Court of Criminal Appeal confirmed that head sentences were not manifestly excessive, and the resentencing was confined to correcting the non-parole period rather than disturbing the total term.
  • A misstatement in applying the Henry guideline criteria does not automatically vitiate the sentence if the sentence actually imposed remains appropriate on the facts.
  • R A Hulme J advanced the view that Kentwell v The Queen permits targeted re-exercise of the sentencing discretion where an error affects only a discrete and severable component of the sentence, rather than requiring full resentencing in every case. Bathurst CJ declined to endorse or reject that proposition, noting it was neither argued nor necessary for the outcome.
  • Under the Crimes (Sentencing Procedure) Act 1999, the standard non-parole period provisions and the special circumstances regime operate together; a finding of special circumstances must be reflected in the arithmetic of the sentence, not merely recorded in the remarks on sentence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW), ss 58, 97(1), 112(2)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)

Cases
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- Daniels v R [2016] NSWCCA 35
- Carroll v R [2015] NSWCCA 219
- Alpha v R [2015] NSWCCA 225
- Hutchen v R [2015] NSWCCA 101
- Jodeh v R [2011] NSWCCA 194
- Sabongi v R [2015] NSWCCA 25