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Court of Criminal Appeal 31 August 2018

Quintero v R; Carvajal v R; Salazar v R

[2018] NSWCCA 190

Theft & property
CRIMINAL LAW APPEAL APPEALS AGAINST SENTENCE FOUR CO OFFENDERS CHARACTER

Citation: Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190
Court: NSW Court of Criminal Appeal
Date: 31 August 2018
Judge(s): Simpson AJA, Schmidt J, Button J

Background

Three applicants were each convicted of four counts of aggravated break, enter and steal contrary to s 112(2) of the Crimes Act 1900 (NSW), committed as part of a joint criminal enterprise. All three were sentenced in the District Court. The proceedings had been delayed for reasons outside the applicants' control, which resulted in each applicant spending additional time on remand rather than as a sentenced prisoner (remand prisoners have access to fewer services than sentenced prisoners).

All three applicants sought leave to appeal against their sentences on multiple grounds. A fourth co-offender, Mr Johan, had also been sentenced but did not appeal. The Court of Criminal Appeal granted leave to appeal and ultimately resentenced all three applicants.

  • Whether the sentencing judge erred by stating an intention to reduce non-parole periods to account for delay, but then failing to implement that reduction in the sentences actually imposed
  • Whether the sentencing judge erred by failing to take into account evidence of childhood deprivation and social disadvantage in the backgrounds of two applicants
  • Whether the sentencing judge erred by treating the absence of any Australian criminal record as insufficient to warrant any leniency, given the nature and repetition of the offences
  • Whether the sentencing judge erred in his assessment of the subjective circumstances of each applicant
  • Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to justify a non-parole period less than 75% of the head sentence
  • Whether any applicant had a justifiable sense of grievance by comparison with the sentence imposed on a co-offender
  • Whether the sentences were manifestly excessive

Decision

Delay and the non-parole period

The sentencing judge expressly stated he would reduce the non-parole periods to account for procedural delay. However, he separately found no special circumstances existed for any applicant, and the non-parole periods he ultimately imposed were each 75% of the head sentence, which is the statutory default under s 44(2) of the Crimes (Sentencing Procedure) Act 1999. The Court of Criminal Appeal held these two positions were irreconcilable. Under s 44(2), the only mechanism by which a non-parole period can fall below 75% of the head sentence is a finding of special circumstances. The Court concluded, on the simpler and more compelling explanation, that the sentencing judge had made a slip in a busy list while sentencing four co-offenders, and had not given effect to his stated intention.

Deprivation and personal background

Two applicants had provided evidence of childhood deprivation and social disadvantage, which is a recognised sentencing consideration under Bugmy v The Queen (2013) 249 CLR 571. The sentencing judge declined to differentiate between the offenders on the basis that their circumstances were broadly similar. The Court found this approach both factually inaccurate and legally flawed: the relevant question was not whether the applicants had equally deprived backgrounds, but whether the evidence in any individual case warranted some moderation of sentence. That question was not properly addressed.

Absence of criminal record and good character

The sentencing judge declined to afford any leniency for the applicants' lack of an Australian criminal record, citing the nature and repetitive character of the offences. The Court considered the applicants' reliance on Ryan v The Queen (2001) 206 CLR 267, but distinguished that case on its facts: Ryan involved extensive positive evidence of good works and community contribution. Mere absence of a prior criminal record is qualitatively different from positive good character. Here, each applicant had arrived in Australia and embarked on a sustained criminal enterprise shortly thereafter. The absence of an Australian criminal record was, in those circumstances, of such limited weight as to be immaterial, and no error was established on this ground.

Outcome

Error was established on the delay and deprivation grounds, making resentencing necessary. The Court imposed reduced aggregate head sentences and non-parole periods for each applicant, with Schmidt J's proposed orders adopted by the bench.

Orders Made

  • Leave to appeal granted to all three applicants
  • Appeals upheld
  • Sentences imposed by Blackmore DCJ upon all three applicants set aside
  • Applicants resentenced as follows:
  • Ms Quintero: non-parole period of 4 years commencing 17 September 2015, expiring 16 September 2019; balance of term of 1 year and 3 months expiring 16 December 2020; release to parole on 16 September 2019 recommended
  • Ms Carvajal: non-parole period of 4 years commencing 17 September 2015, expiring 16 September 2019; balance of term of 1 year and 3 months expiring 16 December 2020; release to parole on 16 September 2019 recommended
  • Ms Salazar: non-parole period of 4 years and 1 month commencing 17 September 2015, expiring 16 October 2019; balance of term of 1 year and 4 months expiring 16 February 2021; release to parole on 16 October 2019 recommended

Key Takeaways

  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, a non-parole period can only be set below 75% of the head sentence where special circumstances are found. A sentencing court that expressly states it will reduce non-parole periods to account for delay, but makes no finding of special circumstances, creates an irreconcilable inconsistency that constitutes error.
  • The Court of Criminal Appeal confirmed the principle from Bugmy v The Queen that evidence of childhood deprivation and social disadvantage must be individually assessed for each offender. A finding that co-offenders share broadly similar circumstances does not discharge the obligation to consider whether any individual's background warrants moderation of sentence.
  • Absence of a prior criminal record is not the same as good character in a sentencing context. Positive good character requires affirmative evidence of community contribution or good works; the mere absence of prior convictions carries far less weight, particularly where the offending began shortly after arrival in Australia and involved a sustained criminal enterprise.
  • A sentencing court that states an intention to treat a particular matter as a mitigating factor must give practical effect to that intention in the sentence imposed. Failing to do so, even in a busy sentencing list, constitutes an error that may require the appellate court to resentence.
  • Disparity between co-offenders' sentences can ground a justifiable sense of grievance, but the Court here found that the sentences imposed on the three applicants were appropriately aligned once the errors were corrected, with only Ms Salazar's additional charge warranting any differentiation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 37, 44(1), 44(2)
- Road Transport Act 2013 (NSW)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Bidgood v R [2016] NSWCCA 138
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- HJ v R [2014] NSWCCA 21
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- KR v R [2012] NSWCCA 32
- Lowe v The Queen (1984) 154 CLR 606
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mill v The Queen (1988) 166