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Court of Criminal Appeal 15 February 2017

Potts v R

[2017] NSWCCA 10

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE ERRONEOUS REFERENCE TO STANDARD NON APPEAL ALLOWED OFFENDER RE SENTENCED CRIMINAL LAW

Citation: Potts v R [2017] NSWCCA 10
Court: Court of Criminal Appeal, NSW
Date: 15 February 2017
Judges: Basten JA at [1]; Johnson J at [8]; Button J at [34]

Background

The appellant was sentenced in the District Court on 3 December 2014 for attempted aggravated break, enter and steal. The offence involved the appellant and his adult son making two attempts to enter a residential property at Canley Heights, both wearing gloves, with the son acting as a lookout. Police arrested them nearby, finding in the son's pocket an identity card belonging to the resident of the targeted property.

The sentencing judge imposed a cumulative head sentence of 3 years and 4 months, with a non-parole period of 3 years, fully cumulative on a pre-existing Drug Court sentence. In reaching that sentence, the judge referred to the standard non-parole period applicable to the completed offence of aggravated break, enter and steal.

The appellant applied for leave to appeal against sentence, filing the application on 2 September 2016, nearly two years after the sentence was imposed.

  • Whether the sentencing judge erred by treating the standard non-parole period for the completed offence of aggravated break, enter and steal as applicable when sentencing for an attempt offence under ss 112(2) and 344A of the Crimes Act 1900 (NSW)
  • Whether that error, if established, required the Court of Criminal Appeal to re-exercise the sentencing discretion afresh
  • Whether a finding of "special circumstances" under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was appropriate at re-sentencing, given the non-parole period had already expired by the time of the appeal hearing

Decision

All three judges agreed that the sentencing judge erred by reference to the standard non-parole period. Under the relevant statutory scheme, the standard non-parole period for aggravated break, enter and steal applies only to the completed offence, not to an attempt. The Court held that this was not a case where the judge had identified and discarded an irrelevant consideration; rather, it operated as a genuine and erroneous guidepost, equivalent to applying a wrong statutory maximum. Under Kentwell v The Queen (2014) 252 CLR 601, this required the Court to exercise its own sentencing discretion independently.

On the substantive re-sentencing, the Court assessed the offence as a reasonably serious example of attempted aggravated break, enter and steal. Relevant factors included two separate attempts to enter the premises, planning evidenced by both men wearing gloves, the apparent selection of the property using a stolen identity card, the presence of a co-offender (the appellant's son), and the appellant's extensive criminal history involving repeated break, enter and steal offences spanning more than two decades. The applicable statutory guidepost was the maximum penalty of 20 years' imprisonment.

The more complex question was whether to find "special circumstances" to reduce the non-parole period below the statutory default ratio of 75% of the head sentence. The judges diverged somewhat in their reasoning, but agreed on the result. Because the appeal was not heard until after the non-parole period had already expired (on 23 October 2016, having commenced on 24 April 2014), a finding of special circumstances to reduce that period further would have had no practical effect on the appellant's actual eligibility for release. Basten JA and Johnson J both concluded that no special circumstances finding was warranted. Button J would have made such a finding to preserve the correct ratio across the accumulated sentences, but agreed it would serve no practical purpose given the timing of the appeal.

Basten JA noted the approximately 21-month delay between sentence and the filing of the appeal, describing such delay as something that should not be tolerated in criminal proceedings where liberty is at stake.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence allowed
  • The sentence imposed by Judge Colefax SC on 3 December 2014 is quashed
  • The appellant is re-sentenced to a head sentence of 3 years and 4 months, with a non-parole period of 2 years and 6 months commencing 24 April 2014 and expiring 23 October 2016, with a parole period of 10 months expiring 23 August 2017, fully cumulative on the pre-existing Drug Court sentence

Key Takeaways

  • A standard non-parole period prescribed for a completed offence does not operate as a sentencing guidepost for an attempt offence. Applying it in that context is a legal error equivalent to applying a wrong statutory maximum.
  • Where a sentencing error of this kind is established, the Court of Criminal Appeal must exercise the sentencing discretion afresh under s 6(3) of the Criminal Appeal Act 1912, as confirmed in Kentwell v The Queen (2014) 252 CLR 601.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999, a finding of "special circumstances" serves the purpose of extending the period of supervised release on parole. That purpose is not served where the non-parole period has already expired by the time of re-sentencing, making any reduction in the non-parole period purely notional.
  • Significant unexplained delay in filing a sentence appeal can render relief that might otherwise have been available practically meaningless, as occurred here when the nearly two-year delay meant the non-parole period expired before the appeal was heard.
  • In assessing the gravity of attempt offences, sentencing courts look to factors including the seriousness of the attempt, its sophistication, the chances of success, and whether failure to complete the offence was due to abandonment or external impediment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 105A(1)(b), 112(2), 344A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44, Div 1A
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Schofield (2003) 138 A Crim R 19; [2003] NSWCCA 3
- R v Doorey [2000] NSWCCA 456
- Lehn v R [2016] NSWCCA 255
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- McGrath v R (2010) 199 A Crim R 527; [2010] NSWCCA 48
- Jinnette v R [2012] NSWCCA 217
- R v Harris (2007) 171 A Crim R 267; [2007] NSWCCA 130
- R v Maher [2004] NSWCCA 177
- D A C v R [2006] NSWCCA 265