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Court of Criminal Appeal 14 February 2018

Campbell v R

[2018] NSWCCA 17

Theft & propertyTraffic & driving
CRIMINAL LAW APPEAL AGAINST SENTENCE MISSTATEMENT OF MAXIMUM PENALTY

Citation: Campbell v R [2018] NSWCCA 17
Court: NSW Court of Criminal Appeal
Date: 14 February 2018
Judge(s): Latham J, Bellew J, Campbell J

Background

The applicant pleaded guilty in the Local Court to a range of offences, including two counts of break, enter and steal, a police pursuit, and knowingly driving a stolen conveyance. He was sentenced in the District Court on 14 December 2016 to an aggregate term of 5 years and 6 months imprisonment, with a non-parole period of 2 years and 9 months. The offending occurred across three days in September 2015, and notably took place only two weeks after the applicant had been released on parole for comparable prior offending.

The applicant sought leave to appeal on a single ground: that the sentencing judge misstated the maximum penalty for two offences involving a stolen conveyance under s 154A of the Crimes Act 1900 (NSW). The judge described the maximum penalty for both the principal offence and a related Form 1 offence as 15 years, when the correct maximum is 5 years. The applicant argued this misstatement infected the entirety of the sentence.

  • Whether the sentencing judge's misstatement of the maximum penalty for the s 154A offences (quoting 15 years rather than the correct 5 years) constituted a material error that warranted appellate intervention.
  • Whether, if error was established, the Court of Criminal Appeal should re-sentence the applicant.
  • Whether evidence of the applicant's progress toward rehabilitation since the original sentence was imposed was a relevant consideration on re-sentencing.

Decision

The Court accepted that the sentencing judge had misstated the maximum penalty for both the principal s 154A(1)(b) offence and the related s 154A(1)(a) Form 1 offence, recording 15 years when the correct figure was 5 years. This was not in dispute. The critical question was whether the error had any practical effect on the sentence actually imposed.

Campbell J noted that the indicative sentence for the s 154A offence (2 years imprisonment) was well within the correct maximum of 5 years, and that there was no express statement by the sentencing judge that the error had distorted his approach. However, the Court concluded that the misstatement could not be dismissed as harmless because the inflated maximum may have influenced how the sentencing judge calibrated the indicative sentence relative to the correct sentencing range.

On that basis, leave to appeal was granted and the appeal was allowed. The Court re-sentenced the applicant, reducing the aggregate term to 4 years and 10 months with a non-parole period of 2 years and 2 months. Campbell J expressly took into account evidence that the applicant's prospects of rehabilitation had improved since the original sentence, noting that his schizophrenia symptoms had been substantially reduced through treatment in custody. This justified a modest reduction in the non-parole period relative to the full term, reflecting the diminished need for community protection while still acknowledging the need for supervised support on release.

Orders Made

  • Leave to appeal granted; appeal allowed.
  • Sentence imposed in the District Court on 14 December 2016 quashed.
  • Applicant re-sentenced to an aggregate term comprising a non-parole period of 2 years and 2 months commencing 1 April 2016 and expiring 31 May 2018, with an additional term of 2 years and 8 months commencing 1 June 2018 and expiring 31 January 2021.
  • Applicant first eligible for parole on 31 May 2018.

Key Takeaways

  • A sentencing judge's misstatement of a maximum penalty can constitute a material error justifying appellate intervention, even where the indicative sentence falls within the correct maximum, if there is a real possibility the error distorted the sentencing exercise.
  • Under s 154A of the Crimes Act 1900 (NSW), the maximum penalty for knowingly driving a stolen conveyance is 5 years imprisonment, not 15 years.
  • Evidence of rehabilitation progress made after the original sentence is imposed is a legitimate consideration when an appellate court re-sentences an offender.
  • Offending committed while on parole remains a significant aggravating factor, and the commencement date of a fresh sentence may be set to account for any unexpired term of the earlier sentence.
  • The Court of Criminal Appeal confirmed that a non-parole period set at a lower proportion of the total term than usual can be justified where improved management of a mental illness reduces the risk to the community, provided adequate supervision on release is accounted for.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B, 51B, 61, 112, 154A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 33, 53A
- Road Transport Act 2013 (NSW), ss 53, 117
- Road Rules 2014 (NSW), reg 287

Cases:
- Andreata v R [2015] NSWCCA 239
- Attorney General's Application Under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1) (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Builders Licensing Board v Mahoney (1986) 5 NSWLR 96
- Donaghey v R [2015] NSWCCA 119
- House v R [1936] HCA 40; 55 CLR 499
- Kilgannon v Sharpe Brothers Pty Limited (1986) 4 NSWLR 600
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Newton v R [2009] NSWCCA 128
- Zaky v R (Cth) [2017] NSWCCA 141