Citation: Warwick v R [2016] NSWCCA 183
Court: NSW Court of Criminal Appeal
Date: 22 August 2016
Judges: Payne JA, R A Hulme J, Adamson J (judgment by Adamson J, with whom the others agreed)
Background
The applicant pleaded guilty to a break, enter and commit serious indictable offence (larceny in circumstances of aggravation, involving an assault) that occurred on 28 August 2010. The offence involved a home invasion during which the householder was struck on the head with an object and required hospital treatment. The applicant was not identified until July 2014, when DNA from a baseball cap and an orange juice container left at the scene was matched to him. He was charged in October 2014 and sentenced in the District Court at Gosford in September 2015, more than five years after the offence.
Critically, the applicant had already been sentenced in June 2011 for a separate but similar aggravated break and enter offence committed just eight days after the present offence (on 5 September 2010). He had served that sentence, with his parole expiring in May 2015, before he was sentenced for the August 2010 offence. By the time of the present sentencing, the applicant had also completed further sentences for offences committed in May 2012.
The applicant was sentenced to three years' imprisonment with an 18-month non-parole period. He sought leave to appeal on two grounds: that the sentencing judge failed to properly account for his rehabilitation in the context of the delay, and that the sentencing judge failed to apply the totality principle.
Legal Issues
- Whether the sentencing judge erred by failing to give sufficient weight to the applicant's rehabilitation progress in light of the significant delay between the 2010 offence and the 2015 sentencing.
- Whether the sentencing judge erred by failing to apply the totality principle, given that a closely related sentence had already been served before the present sentencing took place.
Decision
On the rehabilitation ground, Adamson J accepted that there was evidence of genuine and significant rehabilitation, including the applicant's participation in a methadone program, stable accommodation, family support, and positive parole supervision. However, the Court found the sentencing judge had expressly addressed this matter, and no error in that regard was established.
The appeal succeeded on the totality principle. The Court confirmed that this principle applies not only where sentences are being imposed simultaneously, but also where an offender is being sentenced for an offence that was closely connected in time to an earlier offence for which a sentence has already been served. The sentencing judge is required to have regard to the total criminality across the related offending as part of the instinctive synthesis of all relevant factors, even where the totality point was not raised at the sentencing hearing.
The Court emphasised that it was irrelevant that the applicant had not disclosed the August 2010 offending when charged with the September 2010 offences. To hold his silence against him would be inconsistent with his right to silence. Accordingly, the sentencing discretion had miscarried, and the Court proceeded to re-sentence.
On re-sentence, the Court reduced the total term from three years to two years, and the non-parole period from 18 months to one year, having regard to both the totality principle and the delay between the offence and sentencing. The original discounts for the guilty plea and for special circumstances were maintained.
Orders Made
- Leave to appeal against the sentence imposed on 4 September 2015 was granted.
- The appeal was allowed.
- The original sentence was quashed and replaced with a sentence of two years, commencing 3 September 2015 and expiring 2 September 2017, with a non-parole period of one year expiring 2 September 2016.
- The applicant was ordered to be released on parole on 2 September 2016, subject to standard conditions under the Crimes (Administration of Sentences) Act 1999, including supervision by the Probation and Parole Service.
Key Takeaways
- The totality principle requires a sentencing court to consider the overall criminality of an offender's related conduct, including sentences already served for offences committed close in time, as part of the instinctive synthesis of all relevant factors.
- A failure to apply the totality principle constitutes a miscarriage of the sentencing discretion, and this is so even if the principle was not raised by the parties at the sentencing hearing.
- Significant delay between the commission of an offence and the date of sentencing is a relevant consideration in determining the appropriate sentence, particularly where evidence of rehabilitation during that period is established.
- Where an offender remained silent about earlier offending at the time of being charged for related later offending, that silence cannot be held against them in subsequent sentencing proceedings; the totality principle applies regardless.
- In re-sentencing, the Court of Criminal Appeal reduced the total term by one year and the non-parole period by six months, reflecting both the totality of the earlier related sentence and the delay between offending and sentencing.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 105A, 112
- Crimes (Administration of Sentences) Act 1999 (NSW)
Cases
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v The Queen (1997) 189 CLR 295
- R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
- R v Todd [1982] 2 NSWLR 517
- Wong v The Queen [2001] HCA 64; 207 CLR 584
- Wu v R [2011] NSWCCA 102; 211 A Crim R 88
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460