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9
Court of Criminal Appeal 26 October 2018

R v Gray

[2018] NSWCCA 241

Assault & violenceTheft & property
SENTENCING

Citation: R v Gray [2018] NSWCCA 241
Court: Court of Criminal Appeal, NSW
Date: 26 October 2018
Judges: Bathurst CJ; Schmidt J; Hamill J

Background

The respondent pleaded guilty to two offences under s 97(1) of the Crimes Act 1900 (NSW): assault with intent to rob while armed (the First Count), and robbery armed with an offensive weapon (the Second Count). Both offences were committed in early 2016 while the respondent was on parole for three previous armed robbery offences. His parole was revoked effective from 30 April 2016, and he was taken back into custody.

At sentencing in the District Court, the respondent was described as a highly institutionalised man with an intellectual disability, no meaningful life skills, and a history of drug dependence. The sentencing judge found that the support services recommended in an earlier psychological report had largely not been provided to him during his previous parole period. Both sentences were discounted 25% for early guilty pleas.

The Crown appealed against the sentences solely on the ground of manifest inadequacy. The appeal turned principally on whether the sentencing judge had erred by backdating both sentences to the date of parole revocation, by making a large allowance for special circumstances, and by failing to reflect the objective gravity of the offences.

  • Whether the sentences were manifestly inadequate, having regard to the objective seriousness of the offences
  • Whether the sentencing judge erred by backdating the commencement dates of both sentences to 30 April 2016, the date of parole revocation
  • Whether the allowance made for special circumstances was excessive
  • Whether, in combination, these sentencing choices produced an effective non-parole period that was inadequate for serious offending committed in breach of parole

Decision

The Court dismissed the Crown appeal by majority, with Bathurst CJ and Hamill J holding that the sentences were not manifestly inadequate. Schmidt J dissented, finding that the extent of backdating produced an effective non-parole period that did not adequately reflect the minimum period the respondent should serve for his further serious offending.

On objective seriousness, all three judges agreed the sentencing judge had not erred. Both offences involved the use of weapons and threats against victims, and the Second Count involved the theft of goods and watches worth over $80,000 with substantial additional damage. No member of the Court found error in the assessment of objective gravity.

On backdating, the majority held that a sentencing judge has a discretion whether to backdate a sentence where an offender is serving time as a result of a parole revocation, and to what extent. The majority drew on Callaghan v R and White v R for the proposition that it would, in some cases, be unfair to commence a new sentence only on the date the pre-existing head sentence expires, because that would assume the offender would not otherwise have been granted parole. Given the respondent's compelling subjective circumstances, including his intellectual disability, institutionalisation, and the failure of authorities to provide recommended support, the sentencing judge's approach to backdating was within the available discretion.

Hamill J acknowledged the effective sentence was at or toward the very bottom of the legitimate range, but emphasised that the relevant sentencing decisions were peculiarly within the sentencing judge's broad discretion. His Honour noted the unusual features of the respondent's personal circumstances, including that he had self-reported a drug relapse to his parole officer before committing the second offence in time. These features supported a lenient approach aimed at rehabilitation rather than a crushing sentence.

Orders Made

The orders extracted from the decision are those proposed by Schmidt J in dissent. Because the majority dismissed the appeal, the dissenting orders were not the orders of the Court. The majority orders dismissing the appeal are not reproduced in the provided text.

For reference, Schmidt J's proposed orders (not adopted by the majority) were:
- Appeal upheld
- Sentence set aside and respondent resentenced as follows:
- Count 1: non-parole period of 2 years 5 months commencing 30 April 2017, expiring 29 September 2019; balance of term of 1 year 7 months expiring 29 April 2021 (total: 4 years)
- Count 2: non-parole period of 4 years commencing 30 October 2017, expiring 29 October 2021; balance of term of 2 years 9 months expiring 29 July 2024 (total: 6 years 9 months)

Key Takeaways

  • A sentencing court retains a discretion to backdate the commencement of a new sentence to the date of parole revocation, rather than commencing it at the expiry of the prior head sentence. To do otherwise may be unfair where it assumes the offender would not have obtained parole in the absence of further offending (Callaghan v R; White v R confirmed and applied).

  • In dismissing the Crown appeal, the majority reaffirmed that an appellate court will not lightly interfere with sentencing decisions that fall within the broad discretion of the sentencing judge, even where the result is at the most lenient end of the available range.

  • Compelling subjective circumstances, including intellectual disability, institutionalisation, absence of recommended support services, and evidence of insight into rehabilitation needs, can justify a sentencing approach that prioritises prospects of rehabilitation over the punitive weight that might otherwise apply to serious repeat offending.

  • The Court of Criminal Appeal confirmed that manifest inadequacy requires more than leniency. The Crown must demonstrate that the sentence is so lenient as to be plainly wrong or unjust, not merely that a longer sentence would have been available or preferable.

  • A significant dissent from Schmidt J illustrates that the degree of backdating in cases of parole breach remains a contested sentencing question, with her Honour finding the effective non-parole period insufficient to reflect the gravity of further serious offending in breach of parole.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (assault with intent to rob while armed; robbery armed with offensive weapon), s 154A(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D(1)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Bugmy v The Queen (1990) 169 CLR 525; (2013) 249 CLR 571
- Callaghan v The Queen [2006] NSWCCA 58
- Dinsdale v The Queen (2000) 202 CLR 321
- Lee v The Queen [2016] NSWCCA 66
- Lowndes v The Queen (1999) 195 CLR 665
- Mulato v The Queen [2006] NSWCCA 282
- Muldrock v The Queen (2011) 244 CLR 120
- Power v The Queen (1974) 131 CLR 623
- R v GWM [2012] NSWCCA 240
- R v Henry (1999) 46 NSWLR 346
- R v Holder; R v Johnston (1983) 3 NSWLR 245
- R v MMK [2006] NSWCCA 272
- R v Simpson (2001) 53 NSWLR 704
- R v Way (2004) 60 NSWLR 168
- The Queen v Osenkowski (1982) 30 SASR 212
- Veen v The Queen (No 2) (1988) 164 CLR 465
- White v The Queen [2016] NSWCCA 190