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District Court 8 February 2016

Carratt v R

[2016] NSWDC 7

Theft & propertyDomestic & family violencePublic order & justice offences
CRIMINAL LAW APPEALS AGAINST SENTENCE NON PAROLE PERIOD EXCEEDS 75% PAROLE PERIOD YOUTH OF OFFENDER

Citation: Carratt v R [2016] NSWDC 7
Court: District Court of NSW
Date: 8 February 2016
Judge(s): Cogswell SC DCJ

Background

The appellant was a 26-year-old man who had accumulated a series of offences over a relatively short period, including shoplifting, destroying and damaging property, larceny, and contravening an apprehended domestic violence order. The Local Court had previously dealt with him through good behaviour bonds and suspended sentences, but he continued to breach those orders.

Magistrate Connell ultimately imposed terms of imprisonment across multiple offences, with the overall effective sentence amounting to 20 months. The resulting non-parole period of approximately 15 months and 22 days exceeded 75 per cent of the total head sentence, which is the standard benchmark under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The appellant appealed to the District Court, seeking a reduction in the non-parole period on the basis that special circumstances existed justifying a departure from the statutory benchmark.

  • Whether the non-parole period, which exceeded 75 per cent of the head sentence, should be reduced.
  • Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to justify reducing the non-parole period below that threshold.

Decision

Section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) sets a standard ratio between a non-parole period and the full term of imprisonment, generally contemplating a non-parole period of 75 per cent of the head sentence. While it is not mandatory for every sentence to conform to this ratio, it is unusual for a non-parole period to exceed it. Parliament expressly provides that the ratio can be reduced where special circumstances are established.

Counsel for the appellant pointed to three key factors: the appellant's age of 26, the fact that this was his first time in custody (which had a significant personal impact, including being assaulted), and his need to re-engage with a treating psychologist. Additional factors included his intention to undertake vocational training at TAFE in April 2016, a family support network at home, and the prospect of employment through his father.

Cogswell SC DCJ accepted that these matters together constituted special circumstances. The Crown did not oppose the reduction. The District Court allowed the appeal and varied the non-parole periods across three of the sentences so that they all expired on 22 March 2016, moving the release date forward from 22 May 2016.

Orders Made

  • The appeal against sentence was allowed under s 20(2) of the Crimes (Appeal and Review) Act 2001 (NSW).
  • The non-parole period for the larceny (sequence 1) was reduced to six months, expiring 22 March 2016.
  • The non-parole period for contravening the apprehended domestic violence order was reduced to six months, expiring 22 March 2016.
  • The non-parole period for the second shoplifting offence was reduced to six months, expiring 22 March 2016.
  • The appellant was directed to be released on parole on 22 March 2016, subject to conditions including: good behaviour; supervision by NSW Community Corrections (reporting to Sutherland office by 29 March 2016); residing with his father and grandmother; attending his general practitioner and complying with prescribed medication; and re-engaging with his treating psychologist.

Key Takeaways

  • A non-parole period exceeding 75 per cent of the head sentence is unusual and may warrant scrutiny on appeal, though it is not automatically impermissible under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Special circumstances capable of reducing the non-parole period ratio included the offender's youth, the fact that it was his first period of custody, the personal impact of imprisonment, and a demonstrated need to re-engage with psychological treatment.
  • Where the Crown does not oppose a reduction in the non-parole period, that position is a relevant factor in the court's consideration, though the court conducts its own assessment.
  • Parole conditions imposed by the District Court can be tailored to address the specific rehabilitative needs identified during the appeal, such as psychological treatment and vocational engagement.
  • In allowing the appeal, the District Court confirmed that post-release supervision through Community Corrections and family stability can form part of the rationale for an extended parole period relative to the head sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 20, 44
- Crimes (Appeal and Review) Act 2001 (NSW), s 20(2)

Cases cited: None cited in the judgment.