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Court of Criminal Appeal 5 March 2018

Portelli v R

[2018] NSWCCA 28

Assault & violenceTheft & property
SENTENCING NON PAROLE PERIOD STANDARD NON PAROLE PERIOD PAROLE PERIOD IN SENTENCING

Citation: Portelli v R [2018] NSWCCA 28
Court: NSW Court of Criminal Appeal
Date: 5 March 2018
Judges: Hoeben CJ at CL; Simpson JA; McCallum J

Background

The applicant was convicted after trial in the Penrith District Court of three offences arising from events on 14 November 2012: taking and driving a conveyance without consent, aggravated break enter and steal, and aggravated assault with intent to take a motor vehicle. The offences involved a coordinated raid on a jewellery store at a shopping complex, followed by a violent attempt to steal a bystander's car while fleeing police. Jewellery valued at approximately $300,000 was taken, though most was recovered.

On 22 September 2016, the sentencing judge imposed an effective sentence of eight years' imprisonment with a six-year non-parole period. The applicant sought leave to appeal on the ground that the sentences were manifestly excessive, raising several specific complaints about the sentencing process.

The applicant had a substantial criminal history, including prior convictions for armed robbery, and was on parole at the time of the offences. Two co-accused were sentenced in the same proceedings; only the applicant pursued an appeal.

  • Whether the sentencing judge's misstatement of the standard non-parole period for the aggravated break enter and steal offence constituted a material error affecting the exercise of the sentencing discretion.
  • Whether the sentencing judge failed to give adequate weight to the applicant's serious medical condition (a back complaint).
  • Whether the sentencing judge failed to take into account the onerous circumstances of the applicant's custody, including placement in a form of protective arrangement.
  • Whether appeal grounds not raised below could be entertained by the Court of Criminal Appeal in the interests of justice.
  • Whether, if error were established, the Court should resentence or remit the matter to the District Court.

Decision

The standard non-parole period error. The sentencing judge stated a standard non-parole period of seven years for the aggravated break enter and steal offence. The correct figure under the Crimes (Sentencing Procedure) Act 1999 (NSW) is five years. The Court found this misstatement constituted error in the sentencing process, as the standard non-parole period is a prescribed statutory reference point that the judge was required to apply correctly. That error was sufficient to enliven the appellate jurisdiction.

Medical condition and custodial circumstances. The applicant's complaints about his back condition and his custodial placement (which he described as involuntary strict protection) had not been fully developed at first instance. The Court noted the general rule that an offender is ordinarily bound by how proceedings were conducted below, and failure to advance an argument or evidence at first instance may be fatal to raising it on appeal. However, drawing on Lambert v R [2015] NSWCCA 22 and Renshaw v R [2012] NSWCCA 91, the Court held that the interests of justice warranted entertaining these grounds here. Simpson JA observed that the applicant may not have been well served by his legal representatives at first instance, and that an uncomfortable feeling remained that justice may not have been done.

The resentencing difficulty. In responding to the custodial circumstances ground, the Crown filed affidavit evidence that appeared to contradict the applicant's account. The applicant had described being held in strict protection against his will; the Crown's evidence indicated the placement was at the applicant's own request. The Court held this conflict could not be resolved on the existing record, and that a lacuna in the evidence made it inappropriate for the Court itself to resentence. The matter was accordingly remitted to the District Court.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed; sentence imposed in the District Court on 22 September 2016 set aside.
  • Matter remitted to the District Court for resentencing.

Key Takeaways

  • A sentencing judge's misstatement of the applicable standard non-parole period constitutes a material error in the exercise of the sentencing discretion, capable of vitiating the sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • The general rule that an offender is bound by how proceedings were conducted at first instance is not absolute. Where the interests of justice so require, the Court of Criminal Appeal may entertain grounds not raised below, including where an applicant may not have been adequately represented.
  • Where conflicting evidence on a sentencing-relevant matter cannot be resolved from the appellate record alone, the appropriate course is remittal to the original sentencing court rather than resentencing by the appellate court.
  • Onerous custodial circumstances, including involuntary protective placements, are capable of being mitigating factors at sentence, but must be supported by sufficient and uncontradicted evidence before the sentencing court.
  • Under Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the standard non-parole period for aggravated break enter and steal under s 112(2) of the Crimes Act 1900 (NSW) is five years, not seven.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54B, Pt 4 Div 1A
- Crimes Act 1900 (NSW), ss 112, 154A, 154C, 344A

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lambert v R [2015] NSWCCA 22
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Birks (1990) 19 NSWLR 677
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- Renshaw v R [2012] NSWCCA 91
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44