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Court of Criminal Appeal 16 April 2018

Little v R

[2018] NSWCCA 63

Assault & violenceTraffic & driving
CRIMINAL LAW SENTENCE APPEAL TOTALITY CONSIDERATIONS RELEVANT NEED TO RE SENTENCE APPLICANT FOR THIS OFFENCE ON RE

Citation: Little v R [2018] NSWCCA 63
Court: NSW Court of Criminal Appeal
Date: 16 April 2018
Judge(s): Hoeben CJ at CL; Johnson J; Price J

Background

The applicant was arrested on 13 July 2015 and refused bail on two categories of charges: a serious offence of taking and detaining a person in company with intent to obtain a financial advantage (contrary to s 86(2) of the Crimes Act 1900 (NSW)), and several driving offences. The underlying conduct involved kidnapping, torture, and restraining a victim chained to trees in bushland on two consecutive nights, with the stated purpose of extracting a $20,000 debt.

On 26 May 2016, the applicant was sentenced in the Local Court for the driving offences to a fixed term of 10 months, backdated to 13 July 2015 (the date bail was refused). On 23 June 2016, he was sentenced in the District Court for the more serious s 86(2) offence to a non-parole period of 5 years commencing 13 November 2015, meaning the sentences were partially concurrent.

The complication arose when, on 23 February 2017, the District Court allowed the applicant's appeal against conviction for the driving offences, setting aside both the conviction and the Local Court sentence. This removed the concurrent sentence that the sentencing judge had factored into the structure of the s 86(2) sentence, prompting the applicant to seek leave to appeal against that sentence before the Court of Criminal Appeal.

  • Whether the quashing of the Local Court sentence for driving offences, which had been partially concurrent with the sentence for the s 86(2) offence, gave rise to a miscarriage of justice requiring the Court of Criminal Appeal to intervene.
  • Whether the commencement date of the s 86(2) sentence should have been fully backdated to 13 July 2015 (the date bail was refused across all charges), rather than to 13 November 2015.
  • How totality principles applied in re-sentencing once the concurrent Local Court sentence no longer existed.

Decision

Hoeben CJ at CL (with Johnson J and Price J agreeing) held that the quashing of the driving offences sentence did give rise to a miscarriage of justice. The sentencing judge had structured the s 86(2) sentence by reference to a concurrent Local Court sentence that subsequently ceased to exist. That structural foundation was removed by the successful appeal, leaving the applicant without the benefit of the partial concurrency the sentencing judge had intended.

The Court rejected a full backdating of the s 86(2) sentence to 13 July 2015. The original commencement date of 13 November 2015 had reflected the sentencing judge's application of totality principles, balancing the driving offence sentence against the serious custodial sentence for the kidnapping and torture offending. Simply extending the full backdating would not account for those totality considerations in circumstances where the driving offences sentence had been removed entirely.

Johnson J, in brief additional observations, noted that neither s 59 of the Crimes (Sentencing Procedure) Act 1999 nor the principles in Hampton v R [2014] NSWCCA 131 resolved the difficulty. He characterised the case as an unusual one where a sentencing judge's totality reasoning had been constructed around a sentence subsequently quashed on appeal, providing a proper basis for appellate intervention.

The Court re-sentenced the applicant by increasing the backdating by two months, moving the commencement date from 13 November 2015 to 13 September 2015. This was considered an appropriate balance between crediting pre-trial custody under s 24(a) of the Crimes (Sentencing Procedure) Act 1999 and imposing a sentence that properly reflected the serious objective circumstances of the offending.

Orders Made

  • The sentence imposed by Frearson SC DCJ on 23 June 2016 was quashed.
  • In lieu thereof, the applicant was sentenced to imprisonment with a non-parole period of 5 years, commencing 13 September 2015 and expiring 12 September 2020, with a balance of term of 2 years and 6 months expiring 12 March 2023.
  • The applicant was made eligible for release on parole from 12 September 2020.

Key Takeaways

  • Where a sentencing judge applies the totality principle by reference to a concurrent sentence that is subsequently quashed on appeal, the structural foundation of the original sentence may be undermined in a way that constitutes a miscarriage of justice, warranting appellate intervention.
  • A successful appeal against a concurrent or related sentence can reopen a separate sentence for reconsideration, even where that separate sentence is not itself the subject of a successful error ground.
  • Neither s 59 of the Crimes (Sentencing Procedure) Act 1999 nor the principles in Hampton v R automatically resolved this category of sentencing dislocation; the Court of Criminal Appeal addressed it as an unusual circumstance requiring a fresh application of totality reasoning.
  • In re-sentencing, the court did not fully backdate the sentence to the original bail refusal date. Partial backdating recognised both the requirement under s 24(a) to account for pre-trial custody and the need to impose a sentence proportionate to the objective gravity of the offending.
  • The Bugmy principle (relating to the mitigating effect of deprived background on moral culpability) was acknowledged as a relevant factor in the re-sentencing exercise, though it did not displace the weight given to the serious objective circumstances of the offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 86(2) (take/detain person in company with intent to obtain advantage)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24(a) (pre-trial custody), 59
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(1)

Cases:
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Hamilton v R [2016] NSWCCA 59
- Hampton v R [2014] NSWCCA 131; 243 A Crim R 193
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Khoury v R [2011] NSWCCA 118; 209 A Crim R 509