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Court of Criminal Appeal 25 July 2018

Calhoun (a pseudonym) v R

[2018] NSWCCA 150

Assault & violenceFirearms & weaponsPublic order & justice offences
CRIME SENTENCE APPEAL SPECIAL CIRCUMSTANCES ACCUMULATION EXISTING SENTENCE

Citation: Calhoun (a pseudonym) v R [2018] NSWCCA 150
Court: NSW Court of Criminal Appeal
Date: 25 July 2018
Judges: Bathurst CJ, Basten JA, Price J

Background

The appellant pleaded guilty in the Local Court to three serious offences: assault with intent to rob while armed with an offensive weapon causing grievous bodily harm (the "Rydalmere incident" of May 2013), discharge of a firearm with intent to cause grievous bodily harm, and specially aggravated detention for advantage (the "Smithfield incident" of July 2013). The Rydalmere offence involved an armed robbery in which the victim was shot multiple times and repeatedly kicked. The Smithfield offences arose from the appellant organising associates to intercept, assault, shoot, and detain a man he believed had defrauded him in a firearms transaction.

At the time of both offences, the appellant was serving parole for an earlier armed robbery conviction. His parole was revoked shortly after his arrest. He had an extensive prior criminal history involving serious violence.

In the District Court, the sentencing judge imposed an aggregate term of 9 years imprisonment with a non-parole period of 6 years and 9 months, wholly accumulated on the balance of the pre-existing parole term. The judge declined to find special circumstances, which under the Crimes (Sentencing Procedure) Act 1999 (NSW) would have permitted a departure from the standard statutory ratio between the non-parole period and the balance of term. The appellant sought leave to appeal that decision.

  • Whether the sentencing judge erred by failing to find "special circumstances" under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) by not adequately accounting for the effect of wholly accumulating the new sentence on the pre-existing parole term.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal. The Court granted leave to appeal but found no error in the sentencing judge's approach.

The central argument was that the total period of actual custody resulting from full accumulation on the balance of parole was so lengthy that it should have prompted the sentencing judge to find special circumstances and extend the parole (supervision) component of the new sentence. The Court acknowledged that full accumulation on an existing sentence is a relevant consideration in assessing whether special circumstances exist, but it is not determinative. The sentencing judge had expressly turned her mind to whether any concurrent operation was appropriate and concluded that full accumulation was warranted.

The Court was satisfied that the sentencing judge had not overlooked the impact of accumulation. Rather, her Honour had concluded that a non-parole period of 6 years and 9 months from December 2014 was the minimum period necessary to reflect the seriousness of the offending. The offences fell above the middle of the range of objective seriousness, a significant aggravating factor was that both sets of offences were committed while the appellant was on parole, and the 50 per cent discount for guilty pleas and assistance to authorities had already substantially reduced what the sentence would otherwise have been.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Full accumulation of a new sentence on an existing sentence is a relevant, but not automatically decisive, factor when a sentencing court considers whether special circumstances exist under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • The Court of Criminal Appeal confirmed that a sentencing judge who expressly turns their mind to the question of accumulation and concludes it is appropriate has not necessarily erred, even if no special circumstances finding follows.
  • Where the overall non-parole period reflects the minimum time in custody necessary to account for the criminality involved, the absence of a special circumstances finding will not constitute error merely because the total period is lengthy.
  • Committing offences while on parole remains a significant aggravating factor, and its presence weighs against reducing the non-parole component through a special circumstances finding.
  • An appellate court will not intervene in a sentencing discretion unless error of the kind described in House v The King (1936) 55 CLR 499 is established; a disagreement about outcome does not, of itself, demonstrate appealable error.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33A, 86, 98, 154A, 154F, 195
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- GP v R [2017] NSWCCA 200
- Abdelmeseeh v R [2016] NSWCCA 312
- Tuivaga v R [2015] NSWCCA 145
- Maglovski v R [2014] NSWCCA 238
- Stoeski v R [2014] NSWCCA 161
- Caristo v R [2011] NSWCCA 7
- Wakefield v R [2010] NSWCCA 12
- SZ v R [2007] NSWCCA 19; 168 A Crim R 249
- R v Simpson (1992) 61 A Crim R 58