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Court of Criminal Appeal 20 December 2019

Hardey v R

[2019] NSWCCA 310

Theft & property
CRIMINAL LAW APPEAL SENTENCE WHERE SPECIAL CIRCUMSTANCES WERE FOUND ERROR ESTABLISHED APPLICANT RE

Citation: Hardey v R [2019] NSWCCA 310
Court: NSW Court of Criminal Appeal
Date: 20 December 2019
Judges: Brereton JA, Bellew J, Lonergan J

Background

The applicant pleaded guilty in the District Court to break, enter and commit a serious indictable offence (larceny in circumstances of aggravation, in company) contrary to s 112(2) of the Crimes Act 1900 (NSW), arising from a residential burglary at Minto in April 2017. He had acted as a lookout while his co-offender entered the premises, and later recruited two other men to assist them in escaping when the homeowner intervened.

At the time of the offence, the applicant was on bail for similar offending. He had a history of drug addiction, which both he and his co-offender identified as the motivation for the offending. The sentencing judge found the offending fell towards the lower end of the range of objective seriousness and applied a 25% discount for an early guilty plea.

On 5 December 2018, the applicant was sentenced to a non-parole period of two years commencing 5 January 2019, with an additional term of one year. That sentence was structured to run partially cumulative on an existing sentence imposed at Parramatta in December 2017 (the Parramatta sentence), which carried a non-parole period expiring in July 2019. The applicant sought leave to appeal on the grounds that the sentencing judge failed to give proper effect to her finding of special circumstances and failed adequately to apply the principle of totality.

  • Whether the sentencing judge erred by failing to give meaningful effect to her finding of special circumstances when structuring the cumulative sentences.
  • Whether the level of accumulation, when considered as a whole, was disproportionate and failed to reflect the totality principle.
  • Whether the applicant had a justifiable sense of grievance about the disparity between his sentence and that imposed on his co-offender (the parity principle).

Decision

Grounds 1 and 2: Special circumstances and totality

The Court of Criminal Appeal found that the structure of the sentences, when the cumulation was examined in its precise effect, required the applicant to serve approximately 80% of his total combined sentence before becoming eligible for parole. This was inconsistent with both the finding of special circumstances and the totality principle. There was nothing in the sentencing judge's remarks to indicate she had turned her mind to the precise mathematical impact of the accumulation she had imposed.

The Court confirmed the established principle that where a sentencing judge makes a finding of special circumstances and then imposes cumulative sentences, the judge must direct attention to the overall ratio produced across all sentences taken together. A finding of special circumstances is rendered hollow if the structure of cumulative sentences produces a result indistinguishable from the statutory default. On this basis, error was established and the Court proceeded to resentence.

Parity ground

The parity argument was rejected. The co-offender had committed an additional break-and-enter offence in which the applicant had no involvement, had a more serious criminal history (including a prior conviction for similar offending that led to the parole he then breached), and had three matters taken into account on a Form 1 compared to the applicant's one. The Court was satisfied those distinctions were sufficient to justify the difference in sentences and that the applicant had no justifiable sense of grievance.

Resentencing

On resentencing, the Court imposed a total term of three years imprisonment with a non-parole period of two years, backdated to 5 July 2018. The structure was designed to produce a ratio of approximately 75% between the combined non-parole periods and the combined head sentences across both the current and Parramatta sentences, giving genuine effect to the special circumstances finding.

Orders Made

  • Leave to appeal against the sentence imposed in the District Court on 5 December 2018 granted.
  • Appeal allowed.
  • Sentence imposed in the District Court on 5 December 2018 quashed.
  • In lieu thereof, the applicant sentenced to a non-parole period of 2 years imprisonment commencing 5 July 2018 and expiring 4 July 2020, with an additional term of 1 year commencing 5 July 2020 and expiring 4 July 2021.

Key Takeaways

  • Where a sentencing court makes a finding of special circumstances and imposes cumulative sentences, it must assess the overall ratio produced across all sentences in combination, not merely the ratio within the new sentence in isolation.
  • A finding of special circumstances is rendered ineffective where the precise structure of accumulation leaves the offender required to serve approximately 80% of total combined custody before parole eligibility, with nothing in the sentencing remarks to indicate the judge considered that specific outcome.
  • The totality principle requires active attention to whether the aggregate effect of cumulative sentences is a just and proportionate measure of the total criminality involved.
  • Dismissing the parity ground, the Court of Criminal Appeal confirmed that clear distinctions in the nature and extent of co-offenders' criminality and criminal history are sufficient to answer a parity complaint, even where offenders are sentenced on the same day for overlapping conduct.
  • On resentencing, the Court backdated the new sentence to achieve a combined non-parole to head-sentence ratio of 75% across both sentences, treating that ratio as consistent with the special circumstances finding and the totality principle.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(1), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- CM v R [2013] NSWCCA 341
- GP v R [2017] NSWCCA 200
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Huang v R [2019] NSWCCA 144
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Maglovski v R [2014] NSWCCA 238
- McKittrick v R [2014] NSWCCA 128
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v MAK; R v MSK [2006] NSWCCA 381