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Court of Criminal Appeal 19 October 2018

Sonter v R

[2018] NSWCCA 228

Assault & violence
CRIMINAL LAW SENTENCE APPEAL CLEAR INFERENCE THAT THE NON NO ERROR ESTABLISHED APPEAL DISMISSED.

Citation: Sonter v R [2018] NSWCCA 228
Court: Court of Criminal Appeal, New South Wales
Date: 19 October 2018
Judge(s): Leeming JA, McCallum J, Bellew J

Background

The appellant pleaded guilty in the District Court to reckless wounding in company and affray arising from a violent group assault in Blacktown in May 2015. He and a co-offender attacked a male victim who was defending his partner from an assault by a third co-offender, knocking the victim unconscious and causing a lacerated scalp, a fractured toe, and jaw and coccyx injuries.

At the time of the offending, the appellant was on parole from an earlier sentence. Upon his arrest he was taken into custody and his parole was revoked, with the balance of that parole running from 12 May 2015 to 5 May 2016. The District Court then imposed an aggregate sentence of four years and six months, with a non-parole period of three years and four months, commencing 1 January 2016.

The non-parole period represented 74% of the sentence as formally imposed. However, when measured against the appellant's total effective period in custody (which included the balance of parole he had been required to serve), the non-parole period represented approximately 77.2% of the total effective sentence. The standard ratio under the legislation is 75%.

  • Whether the sentencing judge erred by fixing a non-parole period that amounted to 77.2% of the total effective sentence, rather than the standard 75%.
  • Whether the sentencing judge failed to properly consider the principle of totality when setting the non-parole period.
  • Whether a sentencing judge is required to give explicit reasons whenever a non-parole period exceeds 75% of the total effective sentence.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Bellew J (with whom Leeming JA and McCallum J agreed) found that the sentencing judge had not fallen into error.

On the totality question, Bellew J accepted that the sentencing judge had not explicitly addressed the ratio between the non-parole period and the total effective sentence. However, his Honour had specifically referred to the need to have regard to totality, was plainly aware of the relevant custodial chronology (including the revocation of parole and the period served under that earlier sentence), and had engaged with counsel during the proceedings regarding the commencement date of the new sentence. The Court drew the clear inference that the non-parole period imposed was deliberate and reflected the sentencing judge's considered assessment of the appellant's criminality.

On whether explicit reasons were required, the Court confirmed there is no statutory requirement to give reasons where a non-parole period exceeds 75% of the total sentence. Drawing on McKittrick v R, the Court noted it is usually considered appropriate to do so, but this is not a binding obligation. In the present case, the marginal excess of approximately 2% above the standard ratio, combined with the circumstances of the proceedings, made it clear no oversight had occurred, and explicit reasons were therefore unnecessary.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No error was established where a sentencing judge did not explicitly address the ratio between the non-parole period and the total effective sentence, provided the record as a whole demonstrated awareness of the relevant custodial history and the principle of totality.
  • There is no statutory requirement under the Crimes (Sentencing Procedure) Act 1999 (NSW) for a sentencing judge to give specific reasons when a non-parole period exceeds 75% of the total effective sentence, though it is generally considered appropriate practice to do so.
  • A clear inference that the non-parole period was intended, drawn from the exchanges during sentencing proceedings and the judge's express reference to totality, was sufficient to defeat the appeal.
  • In dismissing the appeal, the Court applied the principle from McKittrick v R that where the excess above the 75% ratio is marginal and the sentence achieves what the judge intended, the absence of explicit reasons does not constitute error.
  • Where parole is revoked following fresh offending and the balance of parole accumulates with the new sentence, the ratio between the non-parole period and the total effective sentence (not just the new sentence in isolation) is the relevant measure for assessing compliance with totality.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(3), 93C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Calhoun (a pseudonym) v R [2018] NSWCCA 150
- GP v R [2017] NSWCCA 200
- McKittrick v R [2014] NSWCCA 128
- R v Simpson (1992) 61 A Crim R 58
- Stoeski v R [2014] NSWCCA 161
- SZ v R [2007] NSWCCA 19
- Tuivaga v R [2015] NSWCCA 145