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Court of Criminal Appeal 20 July 2018

Green (a pseudonym) v R

[2018] NSWCCA 146

Firearms & weapons
CRIMINAL LAW SENTENCE APPEAL PRINCIPLE OF TOTALITY APPEAL GRANTED

Citation: Green (a pseudonym) v R [2018] NSWCCA 146
Court: NSW Court of Criminal Appeal
Date: 20 July 2018
Judges: Basten JA at [1]; Rothman J at [29]; Garling J at [85]

Background

The applicant pleaded guilty in the NSW District Court to four serious offences arising from an armed robbery at a bowling and golf club in Cobar in August 2011. The offending involved breaking into the club manager's home, striking him with a firearm, binding him, transporting him to the club, and then robbing two female employees at gunpoint. Each offence carried a maximum penalty of 25 years' imprisonment.

Shortly after the Cobar offending, the applicant travelled to Victoria and participated in a planned armed robbery of a country bar. He was arrested before the robbery could take place and was sentenced in Victoria to a total effective sentence of 6 years and 3 months, with a non-parole period of 4 years and 3 months. That Victorian non-parole period expired on 30 January 2016.

NSW authorities did not charge the applicant for the Cobar offences until December 2015, several years after the Victorian arrest. At sentencing in the NSW District Court in March 2017, the judge imposed an aggregate sentence of 7 years and backdated it to 9 December 2015, the date of the NSW charge. The applicant sought leave to appeal, arguing the backdating was insufficient to properly account for the totality of sentences across both jurisdictions.

  • Whether the District Court correctly applied the totality principle when sentencing for NSW offences where a prior sentence had already been served in another State
  • Whether backdating the NSW sentence only to the date of the NSW charge adequately addressed the overlap with the Victorian sentence
  • Whether a finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) could serve as a substitute for adjusting the commencement date to address totality
  • Whether adequate assistance was provided by counsel to the sentencing judge on the applicable principles

Decision

The Court of Criminal Appeal held that the sentencing judge erred in the approach to totality. The correct method, established by the High Court in Mill v The Queen (1988) 166 CLR 59 and confirmed in NSW by R v Todd [1982] 2 NSWLR 517, requires a sentencing court to consider the total effective sentence across all jurisdictions and determine what overall sentence is just and appropriate, then work backwards to set the new sentence accordingly. Simply backdating to the date of the NSW arrest or charge does not, of itself, constitute a proper application of the totality principle.

The Court found that the sentencing judge's reliance on a finding of special circumstances to address the Victorian sentence was also misplaced. A special circumstances finding under s 44 adjusts the ratio of non-parole period to balance of term, but it cannot reduce or calibrate the overall length of the sentence. It therefore cannot substitute for a proper totality analysis.

All three judges noted that the sentencing judge received inadequate assistance from the lawyers appearing in the matter. Neither party referred the judge to Mill, which the Court described as the seminal authority. Garling J observed directly that the complex approach required in this case was neither identified nor addressed in submissions, and that it is the obligation of practitioners in sentencing matters to ensure the court has the principles and issues necessary to perform its task.

The Court re-sentenced the applicant, extending the backdating of the NSW sentence to 30 October 2014 rather than 9 December 2015. This reflected a proper application of totality, ensuring the combined effect of the Victorian and NSW sentences was not disproportionate to the overall criminality.

Orders Made

  • Leave to appeal granted
  • Appeal granted
  • The sentence imposed by the District Court on 31 March 2017 quashed
  • The applicant re-sentenced to a non-parole period of 4 years and 3 months commencing 30 October 2014 and concluding 30 January 2019, with a remainder of term of 2 years and 9 months concluding 30 October 2021
  • The applicant first eligible for parole on 30 January 2019

Key Takeaways

  • The Court of Criminal Appeal confirmed that the totality principle, as set out in Mill v The Queen, requires a sentencing court to assess the combined effect of all sentences across jurisdictions and construct the new sentence to produce a just overall outcome, not merely to backdate mechanically to the date of local charge or arrest.
  • A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) adjusts the proportion of a sentence served before parole eligibility, but it does not reduce the total sentence and cannot function as a vehicle for addressing totality.
  • Where NSW offences are sentenced after an interstate sentence has already been served or is being served, the sentencing court must engage directly with the total effective custodial burden across both jurisdictions before fixing the commencement date of the NSW sentence.
  • Backdating an NSW sentence to the date of the NSW charge, without more analysis, will not necessarily satisfy the requirements of the totality principle where a substantial portion of an interstate sentence was served for related offending.
  • Garling J's remarks underscored that the sentencing court is entitled to expect counsel to identify and address the specific principles applicable to the case, including referring to key authorities such as Mill, rather than leaving the court to locate the applicable framework without assistance.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Crimes Act 1900 (NSW), ss 86, 97, 112, 195

Cases
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- R v Todd [1982] 2 NSWLR 517
- Hejazi v The Queen (2009) 217 A Crim R 151; [2009] NSWCCA 282
- R v Fidow [2004] NSWCCA 172