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10
Court of Criminal Appeal 23 February 2018

Brennan v R

[2018] NSWCCA 22

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE AGGREGATE NON APPEAL AGAINST SENTENCE UPHELD

Citation: Brennan v R [2018] NSWCCA 22
Court: Court of Criminal Appeal, NSW
Date: 23 February 2018
Judges: Bathurst CJ, Hoeben CJ at CL, Button J

Background

The applicant was a middle-aged man with an extensive criminal record, primarily for property offences committed to fund a long-standing heroin addiction. He was first sentenced in the Drug Court in May 2015, receiving a suspended aggregate sentence of two years and two months to allow him to participate in the Drug Court program. He initially made some progress but ultimately returned to heroin use, failed to appear in court, and was removed from the program.

When the applicant returned to the Drug Court in December 2016, he faced sentencing for a large number of property offences spanning two periods: those committed before the original suspended sentence (which had now come to light) and those committed while he was on the Drug Court program. Two of the matters were placed on indictment, attracting higher maximum penalties. Judge Barnett imposed an aggregate head sentence of three years and six months, with an aggregate non-parole period of three years.

The non-parole period amounted to approximately 86% of the head sentence. Under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the default ratio is that a non-parole period should not exceed 75% of the head sentence (the "base ratio"). Neither the prosecutor nor the sentencing judge had raised the possibility of exceeding that ratio during submissions, and defence counsel had in fact sought a finding of special circumstances to reduce it below 75%.

  • Whether a sentencing court is required to make a finding of "special circumstances" before imposing a non-parole period that exceeds 75% of the aggregate head sentence under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Whether the sentencing judge provided adequate reasons for departing upward from the base ratio.
  • Whether the applicant was denied procedural fairness by the imposition of a non-parole period significantly above the base ratio, in circumstances where neither the Crown nor the judge had foreshadowed that outcome and defence counsel had sought the opposite result.

Decision

Button J, with whom Hoeben CJ at CL agreed and Bathurst CJ agreed subject to additional observations, found that the appeal should be upheld on the ground of procedural fairness. The sentencing judge had not signalled any intention to exceed the base ratio, the Crown had not sought such an outcome, and defence counsel had actively sought a reduction below 75%. In those circumstances, the applicant's counsel had no opportunity to address the court on a matter that ultimately proved critical to the sentence structure imposed.

Bathurst CJ specifically linked the unfairness to the principles explained by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1. Because counsel had no reason to anticipate the court was considering increasing the base ratio, no opportunity was afforded to address the point. That procedural deficiency caused the sentencing discretion to miscarry.

On resentence, Button J declined to find special circumstances that would reduce the non-parole period below 75% of the head sentence, noting that had not been sought on appeal. However, his Honour also declined to impose a non-parole period above 75%, observing that confining the applicant to less than six months on conditional liberty after a three-year minimum would serve neither his interests nor those of the community. Addressing the underlying criminogenic factor of drug addiction required a more meaningful period of supervised release. The aggregate head sentence of three years and six months was confirmed, but the non-parole period was reduced to two years, seven months and fifteen days, equating to 75% of the head sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal against sentence allowed.
  • The indicative sentences provided by Judge Barnett on 9 December 2016 confirmed.
  • The aggregate sentence imposed by Judge Barnett on 9 December 2016 quashed.
  • Applicant resentenced to an aggregate head sentence of three years and six months expiring 21 May 2019, with an aggregate non-parole period of two years, seven months and fifteen days, each to date from 22 November 2015.
  • First date of eligibility for possible release to parole: 6 July 2018.

Key Takeaways

  • A sentencing court that is considering imposing a non-parole period exceeding 75% of the head sentence, without any prompting from the Crown and where defence counsel is actively seeking the opposite outcome, must raise that possibility and afford the defence an opportunity to address it. Failure to do so constitutes a denial of procedural fairness sufficient to cause the sentencing discretion to miscarry.
  • Under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court must provide reasons when it reduces the base ratio below 75%, but there is no equivalent statutory obligation to provide reasons when increasing it. However, the absence of a reasons requirement does not insulate an upward departure from the ordinary requirements of procedural fairness.
  • In resentencing, the Court of Criminal Appeal declined to impose a non-parole period above 75% on the basis that an unduly brief period of conditional liberty following a lengthy minimum term would undermine the rehabilitative purpose that a parole period is intended to serve, particularly where drug addiction is the underlying criminogenic factor.
  • Where an aggregate head sentence exceeds three years, release to parole at the expiry of the non-parole period is not automatic and remains subject to determination by the State Parole Authority.
  • Confirmation of indicative sentences alongside a resentencing of the aggregate term demonstrates that errors going only to the aggregate non-parole period need not unsettle the individual indicative sentences imposed at first instance, provided those sentences are not themselves challenged on appeal.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 44(2A), 44(2B)
- Drug Court Act 1998 (NSW), s 7A

Cases
- Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
- Veen (No.2) [1988] HCA 14
- Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Parker v DPP (1992) 28 NSWLR 282
- Musgrove v R [2007] NSWCCA 21; 167 A Crim R 424
- Baroudi v R [2007] NSWCCA 48
- Director of Public Prosecutions (NSW) v RHB [2008] NSWCCA 236; 189 A Crim R 178
- Button v R [2010] NSWCCA 264
- R v Wakefield [2010] NSWCCA 12
- Barrett v R [2011] NSWCCA 213
- Weir v R [2011] NSWCCA 123
- Connelly v R [2012] NSWCCA 114
- Zreika v R [2012] NSWCCA 44
- Maglovski v R [2014] NSWCCA 238
- Milsom v R [2014] NSWCCA 142
- Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318
- R v Fidow [2004] NSWCCA 172