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Court of Criminal Appeal 21 October 2019

R v Chandler

[2019] NSWCCA 250

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW CROWN APPEAL ON SENTENCE ROBBERY ARMED WITH AN OFFENSIVE WEAPON NON SIGNIFICANT BACKDATING OF SENTENCE FAILURE TO EXPLAIN REASONS FOR LENIENCE

Citation: R v Chandler [2019] NSWCCA 250
Court: Court of Criminal Appeal, NSW
Date: 21 October 2019
Judge(s): Hoeben CJ at CL; Brereton JA; Cavanagh J

Background

The respondent pleaded guilty in the Local Court to armed robbery under s 97(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years' imprisonment. The offence involved the respondent, wearing a balaclava and armed with a hammer raised above his head, confronting a victim outside his home and demanding his wallet and phone. Three further offences were placed on a Form 1 (to be taken into account at sentencing without separate conviction), and two additional offences were dealt with by way of a s 166 Certificate, resulting in conviction without further penalty.

The respondent had a prior history of robbery offences and was on parole at the time of the offending, having been released only six weeks earlier. The sentencing judge at the Parramatta District Court imposed a head sentence of 4 years' imprisonment with a non-parole period of 20 months, commencing from 18 June 2018 (the date the respondent was taken back into custody following parole revocation).

The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW), arguing the sentence was manifestly inadequate.

  • Whether the sentence was unreasonable or plainly unjust such that it warranted appellate intervention
  • Whether the sentencing judge correctly applied sentencing principles, including the setting of the non-parole period and the exercise of the "special circumstances" discretion under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentencing judge adequately explained the reasons for any leniency applied
  • Whether the degree of backdating of the sentence was appropriate given the respondent's history of parole breaches

Decision

The Court of Criminal Appeal allowed the appeal, finding that the sentencing process had miscarried. The primary difficulty was not the four-year head sentence itself (which Brereton JA, in particular, would not have disturbed), but rather the combined effect of a very generous "special circumstances" finding and significant backdating of the sentence commencement date.

The non-parole period of 20 months represented only 41.6% of the head sentence, well below the statutory default of one-third (approximately 33%), which presupposes that a court finds special circumstances justifying departure upward. The Court found that the sentencing judge failed to adequately explain why such a substantial reduction was warranted, particularly given that the respondent had previously benefited from a special circumstances finding. The Bugmy considerations (relating to deprived background and its ongoing relevance to culpability) were accepted as powerful, but they did not alone justify the extent of the leniency granted.

The backdating of the sentence to commence when the respondent was first returned to custody following parole revocation (18 June 2018) further compressed the period of actual custody attributable solely to the subject offending. The Court noted that it was not the respondent's first parole breach, and that he was entitled to little leniency in that respect. The combined effect of the two decisions meant the respondent would have served only eight or nine months referable to the armed robbery, which the Court found was manifestly less than the minimum appropriate period of actual incarceration.

The Court resentenced the respondent with a non-parole period of 2 years and 8 months, preserving the 4-year head sentence but moderating the special circumstances allowance and adjusting the commencement date to reduce the degree of backdating.

Orders Made

  • Crown appeal allowed
  • The sentence imposed by Judge Bourke SC at the Parramatta District Court on 30 May 2019 is quashed
  • In lieu thereof, the respondent is sentenced to imprisonment with a non-parole period of 2 years and 8 months, commencing 18 June 2018 and expiring 17 February 2021, with a balance of term of 1 year and 10 months expiring 17 December 2022
  • The respondent will be eligible for parole on 17 February 2021

Key Takeaways

  • A finding of "special circumstances" under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires adequate explanation, particularly where the resulting non-parole period departs substantially from the statutory norm; the Court of Criminal Appeal confirmed that a failure to articulate reasons for significant leniency can constitute an error in the sentencing process.

  • Prior receipt of a special circumstances finding is a relevant consideration that diminishes, though does not necessarily eliminate, a respondent's claim to a further such finding on subsequent sentencing.

  • Under the principles in Bugmy v The Queen [2013] HCA 37, a deprived background and its ongoing effects remain relevant mitigating factors, but their weight must be assessed against countervailing considerations including the protection of the community and a history of recidivism.

  • Backdating a sentence to the date parole was revoked is a discretionary exercise; the Court confirmed that where an offender has breached parole on multiple occasions, the degree of leniency available through backdating is correspondingly reduced.

  • In assessing whether a sentence is manifestly inadequate, the Court examined the practical custodial consequence of the entire sentencing structure, not only the head sentence in isolation. A head sentence that might be unobjectionable can still produce a manifestly inadequate outcome when combined with generous special circumstances and substantial backdating.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 192E(1)(a), 195(1)(a)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 44(2), 44(2B), 47(3), 47(4)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Regina v Henry [1999] NSWCCA 111; 46 NSWLR 346
- Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- CMB v Attorney General (NSW) [2015] HCA 9; 256 CLR 346
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146