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Court of Criminal Appeal 8 December 2017

Hunt v R

[2017] NSWCCA 305

Other
CRIMINAL LAW SENTENCING ALLEGED NON PAROLE PERIOD FIRST LEGISLATIVE HISTORY OF S 44(2A) SENTENCING

Citation: Hunt v R [2017] NSWCCA 305
Court: NSW Court of Criminal Appeal
Date: 8 December 2017
Judges: Basten JA; Adamson J; Bellew J

Background

The applicant was convicted in the District Court of multiple offences and sentenced by Lerve DCJ to an aggregate term of imprisonment of eight years and three months, with a non-parole period of five years. The sentencing judge, in pronouncing the sentence, stated the non-parole period first, then the balance of term, and concluded by stating the total sentence.

The applicant sought leave to appeal against the aggregate sentence on two grounds. The first concerned the weight the sentencing judge gave to the applicant's temporary mental illness as a mitigating factor. The second raised what the applicant argued was a failure to comply with s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which requires that an aggregate sentence be pronounced before the non-parole period.

  • Whether the sentencing judge failed to give proper weight to the applicant's temporary mental illness as a significant mitigating factor.
  • Whether pronouncing the non-parole period before the aggregate sentence constituted a breach of s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and if so, what consequences followed.
  • Whether non-compliance with s 44(2A) would invalidate the sentence or otherwise require the Court of Criminal Appeal to intervene.

Decision

Ground 1: Mental illness as a mitigating factor

The Court dismissed the first ground. The weight to be given to mitigating factors, including temporary mental illness, is a matter for the sentencing judge. The applicant did not demonstrate that the sentencing judge failed to take the factor into account or made any error in the weight assigned to it.

Ground 2: Order of pronouncement under s 44(2A)

The sentencing judge stated the non-parole period first, then the balance of term, and finally the total sentence. The Court accepted that s 44(2A) formally requires an aggregate sentence to be announced before the non-parole period, but the judges were not persuaded that non-compliance had in fact occurred, given that the final statement of sentence conformed with the statutory structure. The formal court records and the applicant's own notice of appeal described the sentence in the correct form.

Even if there had been non-compliance with s 44(2A), the Court held the error would be purely technical and of no operative effect. Drawing on the High Court's confirmation in Kentwell v The Queen that non-compliance with s 44(1) is a technical error that does not of itself produce a miscarriage of the sentencing discretion, the Court found no relevant distinction between s 44(1) and s 44(2A). The absence of the non-invalidity savings clause in s 44(3) for these two subsections did not lead to the conclusion that non-compliance rendered the sentence invalid. Rather, those subsections are formal in character, prescribing how a sentence is to be pronounced rather than how it is to be constructed as a matter of substance.

Orders Made

The orders made in the present appeal were:

  • Leave to appeal granted.
  • Appeal dismissed.

(Note: The orders listed in the Orders Section of the provided text relate to the earlier decision in R v Cramp [2004] NSWCCA 264, cited by way of analogy. The operative orders in Hunt v R are as stated above.)

Key Takeaways

  • A sentencing judge's pronouncement of the non-parole period before the aggregate sentence, in breach of the formal requirement in s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), constitutes a technical error of little or no practical significance and does not produce a miscarriage of the sentencing discretion.
  • The Court of Criminal Appeal confirmed that the reasoning in Kentwell v The Queen (concerning non-compliance with s 44(1)) applies equally to s 44(2A): both subsections are formal rather than substantive in character.
  • The absence of a non-invalidity savings clause in s 44(3) for ss 44(1) and 44(2A), in contrast to ss 44(2), (2B) and (2C), does not imply that non-compliance with those subsections renders the sentence invalid. The better view is that a technical error of this kind may be corrected on appeal without requiring the sentencing discretion to be exercised afresh.
  • Weight given to mitigating factors such as temporary mental illness remains a matter for the sentencing judge, and an appellate court will not intervene absent a demonstrated error in the exercise of that discretion.
  • Where a sentence has been improperly expressed due to a formal error of this kind, the appropriate appellate course is to re-impose the sentence in correct form rather than conduct a wholly fresh sentencing exercise, following the approach in R v Cramp [2004] NSWCCA 264.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 45, 48, 50, 53A, 54B; Pt 4, Div 1
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes Act 1900 (NSW), ss 61, 93GA, 114
- Firearms Act 1996 (NSW), ss 7, 36
- Sentencing Act 1989 (NSW), s 5

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Cramp [2004] NSWCCA 264
- Eid v R [2008] NSWCCA 255
- R v Hampton (1998) 44 NSWLR 729
- R v GDR (1994) 35 NSWLR 376
- R v Gower (1991) 56 A Crim R 115
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- The Queen v Kilic [2016] HCA 48; (2016) 91 ALJR 131
- Director of Public Prosecutions v Darcy-Shillingsworth [2017] NSWCCA 224
- Aslan v R [2014] NSWCCA 114
- Ngati v R [2014] NSWCCA 125
- Musgrove v R [2007] NSWCCA 21
- Wilmot v R [2007] NSWCCA 278
- Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
- Browne v Dunn (1893) 6 R 67